- Boeing accepts sole responsibility for 737 MAX crashes, wins agreement that avoids punitive damages.
- Boeing’s lawyers filed a joint court motion Wednesday with the lawyers for the families of the 157 people who died in the 737 MAX crash in Ethiopia, accepting sole liability for the fatal accident and laying out a process to settle almost all the claims.
- This civil case agreement waiving discovery makes the FlyersRights.org litigation one of the only ways Accountability and Truth about the MAX crashes can be achieved, as well as future Safety to prevent avoidable deaths due to lax, incompetent or corrupt safety decision making.
The other ways are whistleblower revelations, criminal investigations and proceedings, Congressional investigations using subpoena powers, and amendments to the Freedom of Information Act.
The FAA was tricked to certify the plane.
A 2019 Supreme Court decision known as Argus Leader allows regulated corporations like Boeing and federal safety agencies like the FAA to keep their safety decision-making secret and immune from any independent safety expert or public scrutiny.
“The defendant, Boeing, has admitted that it produced an airplane that had an unsafe condition that was a proximate cause of Plaintiff’s compensatory damages caused by the Ethiopian Airlines Flight 302 accident,” the filing states.
Boeing explicitly agreed that the pilots were not at fault.
It also exonerated two MAX suppliers: the company that built the jet’s angle of attack sensor and the one that produced, to Boeing’s specification, the aircraft’s faulty flight control software.
The motion includes what’s called a stipulation — a binding agreement on the settlement process — that was signed by all but two of the families.
The stipulation means compensatory damages for each individual claim will be decided either in mediation or in court in Illinois, where Boeing is headquartered. Boeing agrees not to try to force overseas families, many of them in Africa, to seek damages in their home countries, where damages would be far lower.
In a statement Wednesday, Boeing said the agreement “allows the parties to focus their efforts on determining the appropriate compensation for each family.”
“Boeing is committed to ensuring that all families who lost loved ones in the accidents are fully and fairly compensated for their loss,” the statement adds.
What Boeing gets from the agreement is an explicit exclusion of any claim for punitive damages and an end to legal discovery processes or depositions that would seek further evidence of wrongdoing by Boeing.
“The jury shall not hear evidence on issues of liability,” the stipulation states. “The parties further agree that no evidence or argument about punitive damages will properly be the subject of discovery or be admitted.”
Ralph Nader, the longtime consumer advocate known for using tort law to hold corporations to account, called it “a strange settlement without Boeing having to guarantee any dollars whatsoever.”
Boeing’s acceptance of liability is the closest it has come to a full admission of blame for the two deadly MAX crashes that killed 346 people: Lion Air Flight JT 610 in Indonesia in 2018, followed just over four months later by the crash in Ethiopia.
However, it still falls short of telling the world exactly what went wrong in the design and certification of the MAX, how it happened and who was responsible.
What caused both MAX crashes was the faulty activation of new flight control software on the jet — the Maneuvering Characteristics Augmentation System, or MCAS — that forced both planes into a nosedive.
Yet the company has never publicly accepted that the MCAS design was deeply flawed as certified, except to say that it’s design and testing should have taken more account of typical pilot skills and pilot reaction time — a formulation that pointed some blame at the pilots.
Boeing states in the filing that it does “not ascribe fault to the Pilot (Captain), Co-Pilot (First Officer) or seek contributory or comparative negligence against them.”
The agreement states that the lawyers for the families will be permitted to use legal discovery to access material such as the data from the flight recorders. That will allow them to create an animation showing what the passengers experienced during the six minutes of the flight to illustrate the terror and suffering of those who died.
The final financial cost to Boeing won’t be decided for many months. However, the boundaries that the agreement puts on the claims remove an overhang of uncertainty on the company.
With the possibility of further revelations of wrongdoing in court proceedings now remote, Boeing’s leaders can leave it to lawyers to work out the precise compensation amounts while they move on.