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 Boeings 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.