The first thing Boeing does when sued for a crash on foreign soil is try to get those lawsuits moved out of the US and into the foreign countries.  In the case of the 737 Max cases, it means trying to move them to Indonesia and Ethiopia.  If Boeing’s successful, the cases would be virtually worthless and the families would get next to nothing.

The legal doctrine that Boeing relies on is called forum non conveniens. I’ve written about Boeing’s “FNC” strategy most recently here.   And then I gave an interview explaining the strategy to Business Insider reporter Sinead Baker in London, who published an article in June.  She took particular note of my comment that “having a trial in another country with a different legal culture, and less scope for close scrutiny of Boeing, would render the case worthless.”

Last week Boeing’s CEO, Dennis Muilenburg, testified before Congress.  When asked whether Boeing was seeking to move the cases out of the country, the best he could come up with was “Congressman, I can’t comment on that.  I’m just not familiar with the details of that. . . I don’t know the answer.”

Representative Peter De Fazio, the committee chairman, was incredulous.  He hammered the CEO. The Congressman pointed to the Business Insider article, and specifically referred to my comments about the cases being “worthless” in another country.

This took me 30 seonds with Google search.  June 13th, Business Insider. . . And you don’t that that’s happening?”

Read the transcript or watch the exchange at the Business Insider follow-up article.

The National Transportation Board investigates every general aviation accident.  It chalks up the vast majority to pilot error. But half the time, it’s just wrong.

The trouble’s that, in investigating an accident, the NTSB refuses to consult with the pilot’s family or the family’s experts. Rather, it invites into the investigation only other potentially responsible parties–usually the manufacturers of the plane and the plane’s engine–seeking their technical “expertise.” That introduces into the investigation an inherent conflict of interest. It’s no wonder that the NTSB ends up blaming the pilot more often than not.

I’ve written about the inherent conflict of interest for years.  And certainly I’ve had cases where the NTSB determined that the crash was the result of pilot error, but I proved in court the NTSB was just plain wrong.

Now a new film, Invisible Sky, challenges the NTSB’s work in connection with a general aviation crash that killed an opera singer and four of her friends.  I’m told the film takes the NTSB head on.  Click on the image to watch the trailer.

Invisible Sky

The FAA is too cozy with the manufacturers it is supposed to regulate.  I’ve been writing about that since 2009.  The press is just now becoming interested, asking how the FAA ever allowed the 737 Max to be certified.

What does that have to do with a helicopter case and a murder investigation?

In 2001, an Assistant US Attorney, Tom Wales, was shot and killed in his Seattle home.  Wales had prosecuted a case involving a Bell Helicopter — an odd case which seemed to benefit no one but Bell.  Wales’ murder was as mysterious as the Bell case he was prosecuting.  There has never been an arrest.  Rod Rosenstein said a few months ago that the murder investigation is still active, and there’s a $1.5 million reward for information.

The murder case is a subject of a popular podcast, Somebody, Somewhere.”  The investigative reporters, former federal prosecutor and CNN producer David Payne, along with his colleague from CNN, Jody Gottlieb, have been re-examining the evidence since 2018, despite a request from the FBI that they cease and desist.  The popular podcast’s twelfth and final episode leads to a Bell Helicopter case I handled just before Wales was shot.  If the evidence is authentic, it suggests that it’s not just the FAA who the aviation manufacturers have in their pocket.

The highly-rated series is a must-listen for anyone interested in the aviation industry, even if you’ve never listened to a podcast before.

Podcast Uncovers Aviation Industry Influence Over Government Agencies – Season 1, Episode 1

 

 

 

 

Families of both Ethiopian Airlines Flight 302 and Lion Air Flight 610 have sued Boeing in Cook County, Illinois. To win, the families need prove only that a defect in the design of the Boeing 737 Max contributed to the crashes.  But first they have to convince the judges that their cases should be heard in this country and not in either Indonesia or Ethiopia, where the crashes occurred. Of course, if the Cook County courts decide to send the cases to the countries where the crashes occurred, its unlikely the families will ever receive meaningful compensation. Neither the Ethiopian nor Indonesian legal systems allow for meaningful monetary compensation in death cases, at least as compared to the legal system in the US.

So how will the Cook County judges decide whether to allow the cases to proceed in the US, or to instead send them away? The courts will look to the doctrine of forum non conveniens, a common doctrine in aviation cases which allows a judge to send a case to the country where the crash occurred if the judge decides the foreign country is a more appropriate place for the case to proceed.

In deciding whether to keep the case or send it away, the courts will seek guidance from an Illinois appellate case entitled Ellis v. AAR.  Like these cases, Ellis involved the crash of a Boeing 737, but in the Philippines. I represented 31 families from that crash and the issue of forum non conveniens was, of course, hotly contested. Ultimately, we won the forum non conveniens battle and went on to win settlements for all the families. Had we lost on forum non conveniens and the had the court sent the cases to the Philippines, the families would have been turned turned away without any compensation at all.

Under the Ellis case, some of the factors a court should consider in deciding whether to keep a crash case in the United States or send it to the country in which the crash occurred are as follows:

1. Which country would be most convenient for the witnesses?
2. In which country would it be easier to access the relevant evidence?
3. Where would it be easiest to subpoena unwilling witnesses?
4. In which country would it be the least costly to have witnesses attend trial?
5. In which country is it easiest to view the crash site, if necessary?

In Ellis, we convinced the court that, on balance, consideration of these factors weighed in favor of hearing the case in the US and not the country in which the crash occurred. Of note was that the crash site had no evidentiary value because it had been paved over shortly after the crash. Thus there was no reason for a jury to see it.

Boeing will argue that, unlike the Ellis case, these cases should be sent back to the countries in which the crashes occurred. First, Boeing will argue that only the foreign courts can decide the cases in their entirety. That’s because Boeing will blame the foreign airlines, their pilots and their mechanics, but the Cook County courts cannot force those parties to come to the US for trial. Boeing, on the other hand, will volunteer to submit to the jurisdiction of the foreign courts, making those courts the only ones where “complete relief” can be afforded. Boeing will further argue that crucial evidence, such as the aircraft flight data recorders, cockpit voice recorders, and various aircraft parts are in the foreign countries and it’s not likely those countries will allow the evidence to be shipped here.

The families will argue that most of Boeing’s engineers are in Chicago, right down the street from the courthouse, as are the reams of documents involved in the aircraft certification. Moreover, the evidence from the flight data recorders will soon be extracted and reduced to written form which can be easily copied and transmitted to the US. Further, getting to the bottom of what caused these crashes is of vital interest to the United States because the 737 Max aircraft will once again fly in this country.

Judges are allowed wide discretion in ruling on forum non conveniens motions.  That means that, whatever the trial judges decide, it will be difficult if not impossible to reverse the decisions on appeal.

Normally, the FAA cannot be sued for doing a bad job certifying an aircraft as safe. But in the case of the 737 Max, things might be different.

As a general rule, the FAA cannot be sued as long as, in certifying the aircraft as safe, it was exercising its “discretion.” The United States Supreme Court discussed the “discretionary function defense” in a case called United States v. Varig Airlines. In that case, 124 people died on board a Boeing 707 due to an inflight fire. The fire was the result of a lavatory that did not satisfy applicable safety regulations. The families sued the FAA for wrongful death, alleging that the FAA was negligent in certifying the aircraft as safe when, in fact, it wasn’t safe at all. Specifically, the FAA didn’t even review the defective lavatory design, instead simply “spot checking” the design work of Boeing. The Supreme Court ruled that in only spot-checking Boeing’s design work, the FAA was exercising its discretion and thus could not be sued.

[T]he acts of FAA employees in executing the “spot-check” program in accordance with agency directives are protected by the discretionary function exception . . . The FAA employees who conducted compliance reviews of the aircraft involved in this case were specifically empowered to make policy judgments regarding the degree of confidence that might reasonably be placed in a given manufacturer, the need to maximize compliance with FAA regulations, and the efficient allocation of agency resources. In administering the “spot-check” program, these FAA engineers and inspectors necessarily took certain calculated risks, but those risks were encountered for the advancement of a governmental purpose and pursuant to the specific grant of authority in the regulations and operating manuals. Under such circumstances, the FAA’s alleged negligence in failing to check certain specific items in the course of certificating a particular aircraft falls squarely within the discretionary function exception . . .

The case of the Boeing 737 Max, however, is different.  The FAA didn’t even spot-check Boeing’s work. Rather, it farmed out its job to Boeing itself.  Some courts hold that the government can’t assert the “discretionary function” defense when it completely abdicates its responsibility. In short, the FAA can’t argue it had the “discretion” not to do its job, and to instead hope that someone else does it. As the court explained in Whisnant v. United States

While the government has discretion to decide how to carry out its responsibility to maintain safe and healthy premises, it does not have discretion to abdicate its responsibility in this regard.   When it does so, the discretionary function exception cannot shield the government from . . . . liability for its negligent conduct.

Of course, the FAA’s practice of allowing Boeing to self-certify its design seems to be an complete abdication of its responsibilities and, in fact, is now under scrutiny by the Department of Justice, among others. So the question for the families of Ethiopian Airlines Flight 302 is whether this situation is more like Varig or Whisnant?

Both the Department of Justice and Transportation Department’s inspector general are investigating the FAA’s approval of the Boeing 737 Max and, in particular, the aircraft’s anti-stall system known as MCAS.

The FAA is supposed to ensure that Boeing aircraft are safe. Investigators want to know:

  • Are the FAA and Boeing too cozy?
  • Is the FAA’s oversight is too lax?
  • Is it true that the FAA didn’t actually certify the Max’s anti-stall system as safe but instead allowed Boeing to certify the system itself? Wouldn’t that be a conflict of interest?

Perhaps the real question is why these questions are being asked only now.

It was almost 10 years ago that the FAA abdicated its certification responsibilities and granted to Boeing the power to certify its own products. I questioned then whether that was in the best interests of safety.

Beginning August 31, the FAA will allow Boeing to self-certify its designs. The FAA will not even do the rubber stamping — Boeing employees will do that too. According to the Seattle Times, “the new system increases the authority of the in-house inspectors directly managed by Boeing, allowing them to review new designs, oversee testing to ensure the products meet all applicable standards, and sign off on certification.”

Then, in 2013, Boeing’s new 787s began to catch fire. The problem seemed to be Boeing’s new batteries. The NTSB investigated, and raised the same questions that I had a few years earlier. NTSB Chair Deborah Hersman hinted that maybe, just maybe, the FAA isn’t doing its job:

This is an issue when you have a regulator with limited resources. . .You can delegate some of the action, but you can’t delegate responsibility.”

No one seemed to listen. In fact, the FAA, for its part, began to allow manufacturers to certify even more of their own products. In fact, by 2017, the FAA outsourced 90% of all aircraft certification work to the manufacturers themselves.

The FAA is supposed to oversee aircraft manufacturers to ensure that the aircraft they produce are safe for the flying public. They can’t do that if they leave it to manufacturers to police themselves. Yet, that’s what they’ve done since 2009.

Is it any wonder that we’re where we are now?

The Boeing 737

The Boeing 737 was originally intended for short haul flights to short runways.  One of the 737’s unique design features was that the engines were mounted on the underside of the wing, instead of in front of the wings on struts and pylons.

Engine Under Wing

Mounting the engines hard up against the wing decreased drag, reduced weight, improved the aircraft’s center of gravity, made the cabin quieter, increased usable cabin space, and made the engines more accessible for maintenance.   In addition, the under-wing engines just plain looked good.

Introduced in 1967, the Boeing 737 was an immediate hit.  It eventually became the best-selling commercial aircraft in history.

The Type Rating 

Before flying a jet, a pilot must have a license – or “type rating” – for that particular type of aircraft.  That means a 747 pilot cannot fly a 737 without first obtaining a 737 type rating. Obtaining a type rating entails considerable training and FAA testing.  Further, the pilot must renew his type rating regularly.  That means more training and more testing.   An airline that operates multiple aircraft types must therefore develop and maintain multiple training programs.  Expensive.

Southwest Airlines decided it would save money by flying only one type of aircraft and one type only – the Boeing 737.  All Southwest pilots hold and maintain the same rating – the 737 type rating.

Boeing 737 Variants

737 Tail Strike

Over the years, Boeing has introduced a number of clean-sheet designs, such as the 787.  It has discontinued older designs, such as the 757.  But it has continued to develop and produce many variants of the 737.   Versions are now available that hold up to twice the number of passengers as the original.  The speed some versions of the 737 must fly when approaching the runway has increased dramatically, making it unsuitable for shorter runways at a small airports.  Because many variants are so long, they carry a risk of striking the tail onto the runway during takeoffs and landings.  Some versions of the 737 are not suitable for contaminated runways, as was the original.  But the 737 remains extremely popular.  One reason: all variants still qualify as 737s and thus can be flown on the same type rating.

Boeing 737 Max 8

737 Engine in Front of Wing

As the aircraft became bigger, it needed different engines.  The engines no longer fit under the wing.  Thus, the Max 8 carries the engines in front of the wing instead of underneath.  When the Max 8 pitches up too steeply, the engines can adversely affect that aircraft’s aerodynamics.  To fix that problem, software activates the aircraft’s automatic trim system, commanding the aircraft to pitch down.  If that safety system malfunctions and causes the aircraft to pitch down unnecessarily, the pilot can disable the system by switching off the automatic trim so that the trim can be controlled manually.

Lion Air Flight 610                   

Shortly after takeoff, the Lion Air 737 Max 8 pitched down unnecessarily in uncommanded fashion.  The pilots attempted to physically overpower the automatic trim system instead of disabling it.  The crash ensued.

The Controversy

Pilots are outraged that Boeing’s documentation does not explain to the pilot the operation of the automatic pitch down logic, called MCAS (for “maneuvering characteristics augmentation system”).  Boeing says that exactly how the system works is irrelevant – the emergency procedure for an uncommanded pitch down is the same regardless of whether it was caused by the MCAS system or something else – simply disable the automatic trim system.  Pilots respond that they are not mere checklist-followers.  They need to know exactly how their aircraft systems work so they can understand why an aircraft is behaving in an anomalous fashion.

It now appears that Boeing did not specifically discuss the MCAS system in the pilot operating documentation because the more new material contained in the aircraft documentation, the more likely the FAA would require a new type rating — or at least more training — to fly it.  Either of which would, of course, have defeated the whole purpose of modifying the 50 year-old 737 design yet again instead of designing the aircraft from a clean sheet of paper.

Ethiopian Airlines Flight ET302

The Ethiopian crash is in many was similar to the Lion Air Crash.  Both aircraft were new 737 Max 8’s.  Both crashes happened on the first flight of the day.  Both happened shortly after takeoff, in good weather. Both aircraft had difficulty maintaining a stable climb before crashing.  Could the Ethiopian crash also have been the result of the MCAS system commanding a nose-down pitch?

Boeing fans would say ‘no’.  The real cause of the Lion Air crash, they say, was the pilots’ failure to disable the automatic trim system once the plane nosed over.  Given the publicity surrounding the Lion Air crash, the Ethiopian Airlines crew would have been spring-loaded to turn off the system if they were experiencing the same problem.  Therefore, the Ethiopian Airlines crash must have been caused by something else.

 

 

EgyptAir Flight 990 departed JFK for Cairo. After reaching cruise altitude near Nantucket, it suddenly pitched down and crashed into the Atlantic Ocean. There was no apparent reason for the crash. The NTSB ultimately concluded that the cause of the crash was the co-pilot’s “intentional actions.” Specifically, the pilot suddenly pushed the yoke forward and held it there, killing all 217 aboard.

The Egyptian government disagreed with the NTSB’s conclusion, instead blaming the crash on a defect in the design of the 767’s elevator system. Boeing knew that if certain rivets in the elevator’s bellcranks fail, the elevator can jam, causing the aircraft to pitch down and become uncontrollable. Instead of requiring that the airlines replace the suspect rivets with more reliable fasteners, Boeing told the airlines to simply inspect the rivets more regularly. But Boeing knew even before the crash of Flight 990 that the inspection protocol was not effective in catching rivets that had failed. According to the Egyptians,

Equally, if not more disturbing, is the NTSB’s total disregard of the relevance of the unequivocal evidence of either sheared or deformed bellcrank rivets, not only on EgyptAir 990, but also on other Boeing 767 aircraft.

The FAA came to agree that simply inspecting the rivets more frequently was not the answer. So in March 2014 – 15 years after the crash of EgyptAir Flight 990, the FAA warned airlines that “failures or jams in the [Boeing 767’s] elevator system” can result “in a significant pitch upset and possible loss of control” and ordered airlines to replace the rivets with fasteners that were more reliable,

Boeing 767 Elevator Bellcranks

So far, so good. But, somewhat surprisingly, the FAA gave the airlines until 2020 to make the repairs.

Atlas Air Flight 3591 was, of course, a Boeing 767, just like EgyptAir Flight 990. And like EgyptAir Flight 990, the Atlas Air flight suddenly pitched down and crashed for no apparent reason.

If it turns out the Atlas Air Flight 3591 crashed because of what everyone seems to agree is a defectively designed elevator control system, one would have to ask why Boeing and the FAA gave the airlines six years to fix the problem.

Monica Kelly’s lawyer writes to say that a entry contained false and defamatory matter about his client.  He encloses a 2016 report of the Review Board of the Illinois Attorney Registration and Disciplinary Commission recommending that, contrary to the Hearing Board’s conclusion that Kelly filed a frivolous pleading and recommending that she be suspended for 60 days, Kelly’s pleading in fact did not violate ethical rules and that she should not be suspended as a result.  Glad to provide her lawyer’s full input on the matter below.