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Legal View with Ashleigh Banfield

Co-Pilot Unfit to Work; New Airline Cockpit Recommendations; Search Conditions Poor on French Alps. Aired 12-12:30p ET

Aired March 27, 2015 - 12:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

[12:00:00] BARBARA STARR, CNN PENTAGON CORRESPONDENT: Of AWOL, absent without leave, that he never intended to be away permanently, he never intended to join the enemy, that he was always going to come back.

John.

JOHN BERMAN, CNN ANCHOR: Barbara Starr, thanks so much. Appreciate it.

KATE BOLDUAN, CNN ANCHOR: And thank you all for joining us AT THIS HOUR

BERMAN: "Legal View" with Ashleigh Banfield starts now.

ANNOUNCER: This is CNN breaking news.

ASHLEIGH BANFIELD, CNN ANCHOR: Hello, everyone. I'm Ashleigh Banfield. And welcome to LEGAL VIEW.

With entirely the world at this point in shock over a deliberate crash of Germanwings Flight 9525, today comes another shock. Not merely confirmation that something was wrong with this man, the 27-year-old co-pilot named Andreas Lubitz, but confirmation that he knew something was wrong. He was getting treatment for it and he was hiding it from his employer, the airline. I'll say it again, Mr. Lubitz was hiding some kind of medical condition from Germanwings, from German regulators and from the entire outside world. A German prosecutor has said as much and said the search of his flat in Dusseldorf turned up, among other things, a ripped-up doctor's note that said he was, quote, "unfit to work" on Tuesday.

And that's another shock. Tuesday is the day that Lubitz locked his captain out of the flight deck and piloted his Airbus A320 right into the southern French Alps, killing all 150 people on board, including himself. Investigators are not saying what Lubitz's medical condition was at this point, but numerous European media reports say it was depression with anxiety disorder. Germanwings parent company Lufthansa is bound by privacy laws but says the young flyer passed all of his testing and screening and was, quote, 100 percent set to fly.

Lufthansa also says in a reversal from just yesterday that it is now adopting the two-person rule inside its cockpits. That's long been the rule for United States carriers. But this week, at least seven other carriers have now mandated that a flight attendant or a relief pilot enter the cockpit when one of the pilots or the co-pilots decides to leave. We're going to begin our live coverage this hour with CNN's Frederik

Pleitgen, who is in the German city of Cologne.

So, Fred, if you could just expand and this report that has broken today about this medical note that was found in the dust bin that was destroyed and yet was clear to investigators, there is a doctor out there somewhere who said he was not right for getting into an airplane.

FREDERIK PLEITGEN, CNN SENIOR INTERNATIONAL CORRESPONDENT: Yes, absolutely, Ashleigh. And it wasn't only one note. It was apparently several notes. So apparently he had been doing this for quite some time. He had a medical condition. He was under treatment for that medical condition for a while and he had also received apparently several of these notes saying that he was not fit to go to work. And the way this works in Germany is that you go see your doctor, your doctor evaluates you and then it's almost at your doctor's discretion as to how long he says you are not capable of going to work. And also there's several steps that he can take. For instance, he can say there's certain jobs that you cannot do, but there's certain things that you can do.

Now, let's listen in to what the prosecutor had to say after the flats were raided and they found these medical records. Let's listen in.

(BEGIN VIDEO CLIP)

CHRISTOPH KUMPA, DUSSELDORF PUBLIC PROSECUTOR: We have found a letter that indicated that he was declared by a medical doctor unfit to work that were found slashed (ph) in a dust bin. So we have reason to believe that he hid his illness from the company he was working for.

(END VIDEO CLIP)

PLEITGEN: And, Ashleigh, there's two more points that are significant in all of this. One of them is that Germanwings, the company that he worked for, has now come forward and said that they did not ever receive a sick note from him. And they said that corroborates what the public prosecutor said.

We've also been in touch with the university medical center in the town of Dusseldorf, which is one of the places where he had his flat. And they say that he did visit the medical center for what they called diagnosis but they did not say for what sort of illness he visited for, Ashleigh.

BANFIELD: And then, Fred, if you could, just enlighten us, what else was and was not found? So many people were speculating about terrorism, religious affiliation, et cetera. What did the investigators comb through? What did they get?

[12:05:00] PLEITGEN: Well, again, they visited both the places where he lived. One place was in Montabaur, which is about an hour and a half from where I am, and the other one is in Dusseldorf. And they said what they did not find was any sort of letter - a good-bye letter or anything else indicating that this was what he was about to do. They also said that there is absolutely no indication that there might have been a religious motive or a political motive behind all of this.

Right now, they say, what they're focusing on is these medical records that they found. They say those medical records are extensive and especially the fact that they found a letter that was torn up calling him - or saying that he was sick on the day that he was supposed to fly is for them a very strong indication that the reason why this happened was that he was trying to hide the medical condition that he had and, of course, we're still trying to find out what exactly that medical condition was, Ashleigh.

BANFIELD: And, obviously, so much being carried out by investigators from those two locations they searched. Fred Pleitgen reporting from Cologne, Germany, thank you for that.

And now from CNN Center in Atlanta, I'm joined by our chief medical correspondent, Dr. Sanjay Gupta. I'm also joined by CNN's Richard Quest and CNN legal analyst Paul Callan. They're here with me in New York.

Sanjay, if I could begin with you. When you heard this reporting that there was a medical notice in his garbage can that had been destroy and the quote is, "unfit for work," first things that went through your mind?

DR. SANJAY GUPTA, CNN CHIEF MEDICAL CORRESPONDENT: Well, you know, obviously, there are different things that could make somebody unfit for work. You know, you think about physical things first. Somebody unable to carry out the duties of their job. That doesn't appear to be the case here. Nothing that was physically preventing him from doing his job.

So you do wonder, was it a more chronic illness or was there some sort of mental illness. You'd have to sort of wonder about those things certainly. But also what the specific -- I'd want to know how long that period of time was that they were saying he was unfit for work. Was this a day type thing because he was going to get - supposed to be getting some testing or something, or was it something more long term? So, you know, it's - these are some new details, Ashleigh, but still so many questions you'd want to answer before trying to sort that out.

BANFIELD: Could a medical doctor -- I'm only looking at these photographs of a man who seems extraordinarily healthy, running marathons. I think all within the last six to eight months as well of this horror. Would a medical doctor be able to determine something in a sick note that would indicate there is a mental instability?

GUPTA: Well, sometimes - you know, as - when I write notes, for example, for people who you're going to have off of work for a period of time, oftentimes you write the reason why. It may not be a specific diagnosis. It may be some of the testing that's involved or some of the specific reasons as to why the person cannot conduct those duties. Sometimes I'll say that they can go back to a certain level of work, but not other types of work. And there can be clues in there as well.

The notice which oftentimes is the duty of the employee to give to their employer saying I'm not going to be at work during this period of time often is more vague. But a lot of times there's a medical note, you know, for the patient themselves which has more of the details, the diagnosis, the treatment, potential medications, et cetera.

BANFIELD: Ah-ha, I think you hit the nail on the head with the issue of bringing your note into your employer.

Dr. Gupta, stand by for a moment.

This brings me to you, Richard Quest. It is one thing if I have a note and I don't notify my employer. I don't hold the lives of 150 people in my hands on a regular basis. What is his obligation to notify his employer that he's had this note?

RICHARD QUEST, CNN AVIATION CORRESPONDENT: We can be quite clear about this. There is an obligation of a pilot to tell their employer that they are not fit to fly. They on - the moment they check in for duty, they are - and in some cases, like in the U.S. where they have to sign a piece of paper saying that they're fit to fly, there is an explicit undertaking that you are fit to fly. There is no equivocation on this. There is no gray area on this. There is no discussion or dispute on this.

In hiding a medical condition that would make him unfit to fly, Lubitz broke his contract with Germanwings, probably committed numerous offenses, if he hasn't already done so, and there is not a dispute.

Now, where there is a difference and where we will need to look at this in the hours ahead, Ashleigh, on a legal question, is the duty of an aeromedical doctor.

BANFIELD: Ah-ha.

QUEST: The duty of a doctor who is treating him for an illness versus the duty of a doctor who is treating him for medical certification for his air license.

BANFIELD: So let's pass this on to Paul Callan. There are so many questions. I almost wonder if now the crime that's being investigated rises to something that is premeditated if this man did this. But let's get right to the heart of this. What is the duty of the physician to notify an employer of an employee who holds the lives of hundreds of people in his hands?

PAUL CALLAN, CNN LEGAL ANALYST: You know, Ashleigh, I've been looking at German law on this because this will be governed most probably by German law. And we've got two things going on with the Germans. They're meticulous record-keepers. And German law requires doctors there to put in writing detailed diagnosis regarding all contacts with patients.

[12:10:10] But the entire European Union is privacy-phobic in the since that they're even more protective of the privacy of their citizens than in the United States. So a doctor over there is going to be caught in the middle of, do I have to protect the privacy or disclose - BANFIELD: When does privacy get outweighed by the danger to civilian life?

CALLAN: As in the - as in the United States, I believe that even in Germany and in Europe, in one situation where a medical condition is presented that would present an articulable and identifiable threat to the health and safety of others.

BANFIELD: So -

CALLAN: And here, a pilot, who is so sick that he's unfit for duty, should not be flying a plane. And that doctor should have notified Lufthansa of that. I also think Lufthansa may have a problem because why weren't they following up on these fitness reports that this pilot was apparently getting from time to time? Why didn't they reach out to the doctor to get the fitness report?

BANFIELD: Perhaps these fitness reports were above and beyond what his regular, you know - he would be once a year because he's not even 40.

CALLAN: We'll have to see. We'll have to see. Yes.

BANFIELD: He gets annual physicals by the time he reaches age 40. He'd have to get the six-month physical.

Just quickly.

QUEST: Every six - every six months -

BANFIELD: Right.

QUEST: And then once a year you go through a physical. The point is, did the doctor know he was a pilot?

BANFIELD: Right.

QUEST: If he did know he was a pilot, what is the duty of the doctor to tell the airline? But in any event, none of this excludes his responsibility of self-reporting.

BANFIELD: Well, we certainly already know the kind of criminal mind we're dealing with of someone who would dare to commit this kind of mass murder/suicide.

Sanjay, did you want to weigh in last moment?

GUPTA: Well, I was just going to say, it's a good chance a doctor knew he was a pilot. That's part of probably how he or she, the doctor, determined that this man was unfit for duty. You have to know what the duty is that you're talking about.

And also, Richard, you made a good point earlier. I think if this was - if this was a physician typically that worked with the airline, the way that often works, if you're acting on behalf of an organization, you get some waivers ahead of time. The patients allow you to release information. So you can't release the information without the patient allowing that to happen, but oftentimes that's the agreement, they're going to allow you to release information back to the person who's - who's a - you know, the organization that's employing him.

BANFIELD: Sanjay, thank you so much for that. Dr. Gupta and Paul Callan and Richard Quest, thank you. Stand by for a moment.

Coming up next, though, the secure cockpit that kept that pilot locked out. A direct result of 9/11. And starting today, more airlines are making changes and they're following America's lead, requiring two people be in the cockpit at all times. Will this make a difference to the next time you are on an airliner?

(COMMERCIAL BREAK)

[12:16:12] BANFIELD: We're following the latest breathtaking developments in the crash of that Germanwings jet in the French Alps. And I'm again joined by some of the top minds at CNN and also outside the network as well. Aviation correspondent Richard Quest is still here with me in New York, along with CNN safety analyst David Soucie and aviation attorney and private pilot Justin Green. I'm also joined by our law enforcement analyst here at CNN and also former FBI assistant director, Tom Fuentes. He's weighing in from Washington.

For starters, Richard Quest.

QUEST: Yes.

BANFIELD: I need you to weigh in on the two-man cockpit issue. I'm looking at a list that may even have grown since I put this together. Seven different airlines - you've got it too. Seven different airlines -

QUEST: No, this is - this is - this just - this has just happened.

BANFIELD: OK. So let me list the first seven and then you can add to it.

QUEST: Yes.

BANFIELD: These are the airlines that have essentially jumped on this two-person cockpit bandwagon, Lufthansa, EasyJet, a British airline, Air Berlin, Norwegian Air Shuttle, Emirates Airlines, out of the UAE, Air Canada and the other Canadian carrier WestJet. And you're saying that has expanded since then.

QUEST: The Europeans - the European agency AASA (ph) is - is to recommend to all countries in the union that they immediately implemented a two-crew rule, including one qualified pilot in - the agency publishes a recommendation for airlines to ensure that at least two crew, including at least one qualified pilot, in the flight crew compartment at all times of flight.

BANFIELD: OK. So, David Soucie, terrific, that's the recommendation. We'll see how many jump on it.

QUEST: They'll do it. They'll do it. There's not - there's not a - this is a -

BANFIELD: It's a strong recommendation.

QUESTION: No, we haven't - this is more - this is you do it or else.

BANFIELD: Or else. OK.

DAVID SOUCIE, CNN SAFETY ANALYST: Yes. This day will go down in history of aviation. This is the biggest day I think we've had -

BANFIELD: Since 9/11?

SOUCIE: Since the Wright brothers, maybe. I don't know. But this is a big deal because for 17 years with the FAA, me and a bunch of other professionals, Nick Sabbatini (ph), other people in the FAA, and people in AASA (ph) and people at ICCAO (ph), have been trying to tell the airlines and the airlines have been saying, we need to get together on how we implement safety changes because they're not happening. Their - you guys are waiting for us to come out with the rule. But because of regulations, it takes a long time to publish regulations.

BANFIELD: Justin -

SOUCIE: So now they're doing it without even having to be - have to do it.

BANFIELD: Justin, will this inoculate the airlines in the future against any kind of legal actions or cap their culpability and their liability?

JUSTIN GREEN, AVIATION ATTORNEY: Any positive action is going to help limit the airlines' liability. So if this airline had the two pilots in the cockpit - had a flight attendant go in when the one pilot left and the co-pilot had done it, the airline would be better off legally. The question here is - the big thing is how quickly this was done by the airlines -

SOUCIE: Exactly.

GREEN: And how easily it could have been done before the accident. And that failure probably increases the potential liability of the airline.

QUEST: The Europeans, because I've spoken to them this morning, they say they're doing it not - they're doing it because of this. But until Germanwings, they said it wasn't a - it wasn't a perceived risk. The reason the Americans have two people in the cockpit is so that one can always look through the spy hole if somebody's trying to get into the cockpit.

BANFIELD: Yes.

QUEST: It had nothing to do with pilots in the cockpit.

BANFIELD: Tom -- Tom Fuentes in Washington. From an investigative standpoint, are you surprised at the alacrity with which these airlines are moving on this?

TOM FUENTES, CNN LAW ENFORCEMENT ANALYST: I'm a little bit surprised by it, Ashleigh, but, you know, don't forget that on 9/11, the very first fatality out of the 3,000 people killed was a flight attendant. So, you know, by putting a flight attendant in the cockpit, we have captains and co-pilots carrying guns on U.S. carriers. If one of them goes bad, that flight attendant is not going to be in a position to stop what might ultimately happen, like what happened in this case.

So, yes, it's a step that will help. It mainly would help if there's a medical emergency, to make sure that somebody else can get into the cockpit to provide assistance to a stricken pilot, maybe food poisoning or something. But, you know, to prevent this kind of an act, that's putting a lot of pressure on a flight attendant.

[12:20:06] BANFIELD: OK, I want to have all four of you stand by and my great thanks to the expertise that you've all weighed in on. I know, Richard Quest, I need to let you go for International.

QUESTION: You do. You do.

BANFIELD: In the meantime, we all know that they were able to find the cockpit voice recorder. That happened very quickly and it certainly gave us the details to lead us to the narrative we're following now. No such luck with the other black box, the flight data recorder. What of the mission to find it? How big is the piece they're looking for? What are the odds they're going to find it? Will it yield any more information? And then what of the human remains? That enormous and awful task that awaits all of those searchers.

(COMMERCIAL BREAK)

BANFIELD: And we have breaking news just into us here at CNN. And this comes to us courtesy of a clinic in Dusseldorf, Germany, that says it treated the co-pilot of that deadly crash, Andreas Lubitz. And this is what the clinic is releasing in a statement about his mental condition. The university clinic in Dusseldorf says it confirms that reports of Lubitz having been treated for depression are not true. This is the Dusseldorf University Clinic that says it treated that co- pilot and that any reports that are floating out there or being printed in publications around the world that he was suffering from depression are simply not true.

[12:25:00] It is an intriguing development in a day where the developments are falling fast and furious. The penultimate development being that there was a sick note that was found destroyed in his own garbage can in his apartment in Dusseldorf that said he was not fit to work. So now the mystery seems to just be broadening as to what exactly it means to not be fit to work when work means flying a plane with over 100 people on board.

And we can - we continue to look into this crash and what it is that search crews may end up finding. They are certainly looking hard for that flight data recorder. That's the other black box that the contents of which are out there somewhere. Certainly easy to see why they're having a really tough time with it, too. This is the crash site. It is awful. Rocky, craggy, ravine after ravine. Plane parts scattered throughout them. Almost as far as the eye can see and beyond that too. And if that's not enough, the weather is just not cooperating.

They're not even looking for the high-visibility case that that data recorder fits inside. They found that and it was broken and it was empty. They're looking for the electronic parts and the computer chips that usually are found within that case. CNN's Erin McLaughlin is near the crash site in the French Alps, and also here with me, Christine Dennison, whose company specializes in remote, difficult search locations. And our safety analyst, David Soucie, is here as well.

So, Erin, if you could just update me on the search process, because there are - there are many processes involved. Number one, the sensitivity of trying to locate the remains and identify them. Number two, the investigative process, finding that additional flight recorder information.

ERIN MCLAUGHLIN, CNN CORRESPONDENT: That's right, Ashleigh, and those efforts really being complicated by the windy conditions at the crash site today. The wind really slowing things down. But as you say, the investigators there really have two priorities. The first being to find that missing flight data recorder. They managed to find the case. They're still looking for the file. The CEO of Lufthansa has said that he believes there's a high probability that they will eventually find the recorder itself. But the question, of course, is, what kind of condition will that recorder be in when and if they do, especially considering that that is really seen as important to giving them more clues as to how that plane was performing, what sort of commands that plane was receiving prior to impact.

Now, their second priority today is to continue to find human remains. And I say human remains because investigators today are saying they have not found a single whole body. That is how devastating the crash impact was.

Now, what they're doing with the remains when they find them is that they're airlifting them out. They're bring them to a nearby valley where there's a center set up. They're loading them onto boxes there. And then from there, they're trucking them to a separate center for that very important DNA analysis. And we're now hearing that yesterday investigators began to collect DNA from the family members. That comparative analysis expected to take weeks.

Ashleigh.

BANFIELD: Erin McLaughlin live for us in (INAUDIBLE), this staging area so close to where that incident happened.

Christine Dennison and David Soucie, I want you to weigh in on what she was just reporting, how tough this job is. I know that the last we talked to you, it was about MH-370 and the difficulty of matting under water, finding debris and then recovering debris and bodies. Is it harder when it's an underwater crash, is it harder when it's a craggy set of ravines like this? And what is this mapping process? What are they doing? CHRISTINE DENNISON, EXPLORER, REMOTE EXPEDITION SPECIALIST: Well, first of all, I think this is very - a very good example in some ways to remind us that if we have impact under water, it would look very similar to what we're seeing here, which is a very large debris field, very difficult to make contact, very difficult to really search through. So something like MH-370, what we're seeing top side is what we'd find under water, which makes it, in my opinion, a little bit harder.

Here, nonetheless, you've got very difficult terrain. You have bad weather. You have ice. You've got some of the best crews in the world, if not the best, but -

BANFIELD: But at least you've got bird's-eye.

DENNISON: You've got bird's-eye. You've got eyes on the ground.

BANFIELD: Is there a grid plan? Is there something they lay over grid by gird and deal with it that way?

DENNISON: Absolutely. Absolutely. I think they're probably using geo- referencing, which is they're going down, they're taking photos, they're sending it back to forensics. They're trying to recreate the point of impact, how it came apart, where it hit and sort of then work from there on how everything is spread out.

BANFIELD: About that point of impact, David Soucie, you and I were speaking off air before the program and I couldn't believe what you told me about - and it's morbid topic, but it's important because these family members want their loved ones in whatever fashion they can get the remains. If a searcher finds a piece of remains, there is actually a formal process by which you can map out more of that person in how they died and the impact. Can you explain this?

[12:29:56] SOUCIE: Well, if necessary -- and it may or may not be based on what they find on the scene, but at this point, again, it's morbid to talk about, but the remains are part of the investigation. Thereby, they are - they give you clues and they give you information about things.