A McDonnell Douglas MD-82 crashed in August 2008 while taking off from Barajas Airport in Madrid. 154 on board were killed and 18 were injured. The injured passengers and the families of those killed filed lawsuits in the US against Boeing, which merged with McDonnell Douglas in 1997, claiming that the aircraft was defective.
Here’s what the plaintiffs say happened:
- The airplane crashed because its flaps and slats were not extended as required for takeoff.
- The pilot was not alerted that the flaps and slats were in the wrong position because the “Take-Off Warning System” (or TOWS) failed to operate.
- The TOWS failed to operate because mechanics, to deal with another problem, had disconnected an electrical relay which, in turn, deprived the TOWS of power.
How would any of this make the manufacturer liable?
Because, according to plaintiffs, the manufacturer should have wired the TOWS to be “fail-safe” so that, if power to the system was disrupted, it still warned the pilot:
Plaintiffs contend that the Spanair crash at issue in this case is strikingly similar to a crash of a McDonnell Douglas MD–82 on takeoff from Detroit Metropolitan Airport in 1987. . . According to Plaintiffs, the NTSB concluded that the TOWS system in that plane did not receive electrical power and thus failed to warn the crew that the plane was not properly configured for takeoff . . . Plaintiffs further report that the NTSB made six recommendations, including a design modification that would illuminate a “fail” light in the event of a circuit power loss, but Defendants did not adopt that recommendation . . . Plaintiffs contend that TOWS failures now account for 49 accidents. . . On the basis of these allegations, Plaintiffs contend that “[t]his case is about a design defect that remains uncorrected despite Defendants’ knowledge of it for over 20 years.”
But even assuming plaintiffs made out a viable case against the manufacturer, there was still the question of whether the cases should be tried in the US or, under the doctrine of forum non conveniens, dismissed and sent to Spain, where the accident occurred.
In the end, the California federal court dismissed the cases, just as in the Air France Flight 447 litigation.
In dismissing the cases, the court decided that, in essence, it would be more convenient for all parties if the suits were brought in Spain. Two parts of its ruling were interesting. First, the court considered and rejected plaintiffs’ argument that it would be a great economic burden for them to bring the suits in Spain because in Spain, contingency fee agreements aren’t allowed.
if the unavailability of contingency fee arrangements weighed against dismissal, it would likely weigh against dismissal in every case. This factor therefore does not deserve “substantial weight” in the balancing . . . Further, Plaintiffs have argued only that they will face “serious financial impediments.” Notably, they have not argued, or pointed to any evidence, that these financial impediments will be prohibitive.
In other words, it might be very difficult for the plaintiffs, many of whom had lost their bread winners, to pay hourly rates for attorneys to bring the cases in Spain. But it wasn’t impossible.
Second, the court ruled that it would be cheaper for the plaintiffs to obtain witness testimony if the cases were in Spain rather than the US.
Damages testimony–from family, friends, and doctors–will be necessary for each of the 100 victims. All plaintiffs and the decedents they represent are from outside of the United States. The cost of travel for these witnesses alone is extremely high. Because almost all of the decedents come from Spain, the costs associated with obtaining testimony from those witnesses in that country would be far lower.
Never mind that plaintitffs, in chosing to bring the cases in the US, were obviously willing to bear those costs. Sure, they knew it might be cheaper to bring the witnesses to court in Spain. But it wouldn’t matter much because in Spain the cases would be next to worthless.
The case is In re Air Crash at Madrid, Spain, on August 2, 28, 211 WL 158452 (CD Cal. Mar. 22, 2011.)