Law360, Linda Chiem (June 14, 2023, 10:55 PM EDT) — Boeing has agreed to settle five wrongful death cases over the Ethiopian Airlines 737 Max crash days before a damages trial starts in Chicago federal court, but the family of a Rwandan United Nations worker will still take their case to trial, attorneys for the families told Law360 on Wednesday.
Following a final pretrial conference before U.S. District Judge Jorge L. Alonso ahead of the June 20 trial, Boeing settled the cases brought by the families and estates of Christoph Sautner, Zhenzhen Huang, Victor Tsang, Melvin Riffel and Bennett Riffel, according to Robert A. Clifford of the Clifford Law Offices PC, one of the lead attorneys on the plaintiffs’ executive committee. The case brought by the family and estate of Jackson Musoni will proceed with jury selection Tuesday, according to Steven C. Marks of Podhurst Orseck PA, another lead attorney on the plaintiffs’ executive committee.
The court last year signed off on a bellwether process lining up batches of six cases — out of nearly 50 selected cases — to proceed to trial over the March 2019 crash of Ethiopian Airlines Flight 302 that killed 157 people. The initial batch of six cases settled in March. This second batch had two cases, plus four backup cases, ready to go for a June 20 trial. Barring an eleventh-hour settlement, the trial will now center on just the Musoni case — which was the first of the wrongful death suits filed against Boeing in the weeks after the accident — to determine how much in compensatory damages Boeing must pay under Illinois law.
It will be the first time Boeing faces a federal jury over the Ethiopian Airlines Flight 302 tragedy, as the families seek to hold it accountable for its missteps in the development of the 737 Max.
“The families have waited a long time [and] some do not have the stamina or emotional strength or desire to go through a trial process,” Marks told Law360 on Wednesday. “They’ll be traveling, the entire [Musoni] family will be there for the trial. It’s meaningful for them that Boeing is held accountable. And they will accept whatever judgment that the jury enters.”
Here, Law360 takes a look at the case ahead of next week’s trial in Chicago, which was the location of Boeing’s corporate headquarters from 2001 until the company moved to Arlington, Virginia, last year.
Boeing in November 2021 accepted liability for the Ethiopian Airlines crash as part of a stipulation that paved the way for the families to collect compensatory damages under Illinois law, by claiming loss of economic support, loss of consortium, pain and suffering, and emotional distress, among other things. But under that stipulation, the families agreed to waive punitive damages claims against Boeing.
In the more than four years since Flight 302 crashed just minutes after takeoff from Addis Ababa Bole International Airport, Boeing has inked confidential settlements with many of the crash victims’ families, leaving approximately 70 cases still to be tried or settled. The passengers on the flight hailed from 35 different countries, and only eight were U.S. citizens, making litigating the already complex case even more challenging in light of unique government immigration, visa requirements, communication, travel restrictions and other issues.
In recent weeks, the parties have sparred over allowing evidence and expert testimony underscoring the pain and suffering that passengers experienced before the jet crashed into the ground, as well as the emotional distress experienced during the six minutes the jet was in the air. Boeing fought against allowing such evidence because it would be far too speculative.
Judge Alonso on May 30 allowed the families to argue for pre-impact pain and suffering. Counsel for the families have maintained that the crash victims undeniably suffered emotional distress, pain and suffering, and physical impact and injury while they “endured extreme G-forces, braced for impact, knew the airplane was malfunctioning, and ultimately plummeted nose-down to the ground at nearly 600 miles per hour, leaving a crater 30-feet deep.”
Notably, Illinois law doesn’t cap pain and suffering compensation.
“My guess would be that Boeing, knowing now where they stand, would want to get this case settled certainly before it goes to a jury verdict and if possible before trial,” Alan Hoffman, a private pilot and retired Husch Blackwell LLP product liability attorney, told Law360 earlier this week. “If I was a betting man, which I’m not, I would predict a settlement which will still involve a lot of money. That way, your client has control over its own fate and gets to make a decision on how much to pay rather than have a jury make a decision.”
Given the number of decedents involved in the remaining cases, this is not a good place for Boeing to be, according to Hoffman.
“There’s also the impact of that on other airline crash litigation [and] every case is going to be based on the law of the forum, but it would be a very helpful precedent for aviation plaintiff lawyers to have in their arsenal,” he added.
The litigation accused Boeing of shortcutting safety in pursuit of profits as it rushed the design and development of the 737 Max and a unique automated feature that affected the jet’s flight handling and controls, called the Maneuvering Characteristics Augmentation System, or MCAS.
The MCAS was designed to compensate for the difference in aerodynamics in the 737 Max, which had larger engines mounted further forward on the aircraft wings than in earlier versions of Boeing’s 737 line. Accident investigators and other official review panels have since determined that the MCAS was vulnerable to faulty sensor readings that could inadvertently trigger the system and push the plane into a nose-dive.
Clifford told Law360 this week that the families want justice.
“They feel that Boeing has done them grave wrong by having their loved ones die in a defective, unsafe aircraft in a crash that was preventable,” Clifford said. “The families are from 35 different nations around the world and, as a consequence, it’s hard sometimes for them to culturally understand our system of jurisprudence and [that] an American jury would decide the level of complete compensation for their losses. They just struggle with the fact that a defendant can admit liability [yet] avoid the actual full production of a liability trial.”
“Justice is not punishment, justice is getting complete compensation for the wrong that’s been done,” Clifford added. “It’s not enough to [just] say, ‘I’m sorry,’ unless you put action behind that … Boeing’s admission of responsibility is half-hearted because they fight so hard on compensation in the settlement discussions that have gone on.”
The battle is especially timely given that Illinois state lawmakers in May approved a bill that would allow for punitive damages in most newly filed wrongful death actions. House Bill 0219 now awaits Gov. J.B. Pritzker’s signature. Existing Illinois law allows only injured victims who survive accidents to seek punitive damages.
Just five months before Ethiopian Airlines Flight 302, Boeing’s 737 Max was also involved in the crash of Lion Air Flight 610 in the Java Sea, which killed 189 people. But many of the Lion Air crash victims’ families have settled their cases against Boeing, leaving just two cases in Illinois awaiting trial.
Boeing declined to comment late Wednesday. In a previous statement to Law360, Boeing stated that it’s deeply sorry to all who lost loved ones on both flights.
“We acknowledged the terrible impact of these tragic accidents and made an upfront commitment to fully and fairly compensate every family who suffered a loss,” Boeing said. “Over the past several years we have kept our commitment as we settled a significant majority of claims, and we will continue to work to constructively resolve the remaining cases.”
Boeing’s lead counsel is Dan K. Webb of Winston & Strawn LLP, alongside other attorneys from the firm and from Perkins Coie LLP.
But Boeing has argued that there has to be limits on highly speculative testimony that would invite guesses as to what passengers might have experienced.
For example, the company argued in court filings that Illinois law only allows survival damages for the “conscious pain and suffering flowing from the passengers’ injuries,” and that evidence tends to show that passengers had no time to experience conscious pain and suffering after injury because they died immediately upon impact. But Judge Alonso on May 30 rejected that narrow take on the law, finding that “damages for pre-impact emotional distress are available to plaintiffs in this case, to the extent that they are able to prove them at trial, regardless of whether they can prove a pre-impact physical injury.”
Fox Rothschild LLP aviation partner Mark Dombroff, a former U.S. Department of Justice and Federal Aviation Administration attorney, told Law360 in a recent interview that he understands Boeing’s concerns surrounding speculation in the trial.
“We’re not necessarily talking about a singular legal issue associated with Illinois,” Dombroff said. “What we’re talking about really is the jury issue … That’s a risky proposition because each juror is inevitably going to put themselves into the position of a passenger, in their own mind.”
“The plaintiffs are certainly going to argue that from the time of the upset [of] the cruise configuration of the airplane, the loss of control, until the time the airplane hit the ground that they are entitled to pain and suffering,” Dombroff added. “How for heaven’s sake do you put a number on that? How do you present parameters associated with it? Boeing, to their credit after the accident, stepped up and has resolved most of these cases. I suspect they’d like to resolve the remaining cases and in some respects, I think the [May 30] ruling of the judge perhaps makes it more difficult for them because what it does is embolden plaintiffs’ counsel with respect to going to trial. I think the decision-making process that Boeing has to engage in is relatively formidable.”
–Editing by Kelly Duncan and Emily Kokoll.