“This could be the biggest aviation case in world history”
Attorney Steven Marks of Miami-based law firm Podhurst Orseck is suing The Boeing Company in a US court, representing the families of Lion Air JT 320 and Ethiopian Airlines Flight 302. The attorney has been in about every important case involving an aircraft accident over the past 30 years: Colgan Air, Concorde, ValueJet, Malaysian 370, German Wings, Air France 447 and countless others. His experience is that generally the pilot becomes the fall guy. This time is going to be different. On the Boeing MAX there is a clear product design defect already admitted by the company. An exclusive interview.
Q: The preliminary report of the accident of ET302 was published by the Ethiopian authorities two weeks ago. It seems that not only the accident was caused by the same software issue as on Lion Air Flight JT602, the so-called MCAS that pitched the plane down repeatedly. But this time the pilots seemed to have followed the emergency procedure Boeing issued after the Lion Air accident.
Marks: This proves that the emergency procedure Boeing issued on November 6 is no fix at all. There is a design defect in what was intended to be a protective device which sends the nose straight down. But you cannot legitimately ask a pilot to disarm a “safety system” in a few seconds at low altitude. It’s counterintuitive for a pilot to ignore the instruments or worse to disable them because they contain a known defect.
Q: So there is a problem with the design of the plane.
Marks: Yes. However, the fundamental problem is how this plane was certified; you don’t get the normal scrutiny like you would have with a new plane like the B737 or the B777 if the approval process, which Boeing is in charge of, involves an amendment or a supplement to an existing type certificate. Since the aircraft was radically changed, a new “type certificate” would have required new plans and specifications, engineering reviews, FAA oversight, a prototype, SIM-sessions, new manuals, a different type rating for pilots, new ground school, flight training, etc. Boeing by-passed these established safety measures even though it’s a different aircraft.
Q: So sending out a bulletin with the runaway trim stabilizer checklist in November and promising a quick software fix wasn’t enough
Marks: Before Lion Air 610 none of the pilots even knew about the MCAS system. Then Boeing issued a checklist, but the crash of Ethiopian Air proves that the “bandage approach” did not work. What the real issues are, we don’t know yet. In my opinion, for public safety, the MAX should undergo a complete review as a new type. The Boeing MAX has an extended fuselage, the engines are larger and produce considerably more thrust. Given their increased size, the engines were moved forward so they wouldn’t hit the ground. These significant modifications changed the aerodynamic capabilities of the aircraft. We don’t know whether there are other operational issues give the lack of testing and flight simulation experiments.
Q: Does this enormous case for Boeing have a precedent of product defect and liability? Maybe these so-called rudder reversal problems the Boeing 737–300 suffered in the nineties?
Marks: I actually tried the Silkair case before a Los Angeles jury and in two months proved the effect with the power control unit (PCU) that actuated the rudder. The rudder panel wac controlled by a single hydraulic PCU. The common thread with the Boeing 737 MAX is the lack of redundancy, in this case the dependance of the MCAS-system on only one angle-of-attack sensor. So in addition to a faulty design, there is also a violation of the Federal Aviation Rules (FARs) since there is no redundancy.
Q: People ask themselves how such an obvious thing in aviation as redundancy was overlooked.
Marks: This shows what happens when you skip regulatory oversight. There is a clear political anti-regulatory climate in the US. In aviation there is a lack of an independent watchdog, not co-opted like Boeing was in the certification process of the MAX. Boeing basically certified the aircraft by itself. The same thing happens when the NTSB investigates a crash. When such a tragedy occurs with one of its planes, Boeing is granted “party participant” status actively running the investigation and often leads the analysis of critical data. The NTSB relies on Boeing’s expertise so much so that the investigated is investigating itself. After Lion Air the spotlight was on Boeing, but it was Boeing who was calling the shots and issued the patch. Had the FAA done its job in the original certification neither accident would have occurred. Certainly the NTSB should have immediately grounded the MAXs after Lion Air rather than to allow the agency to be so influenced by Boeing which unquestionably would have prevented the second disaster. It’s inexcusable. The FAA and the NTSB should be independent agencies rather than controlled by those that are supposed to regulate. It’s outrageous. First you have 189 deaths and then 157 people.
Q. But after publicly admitting problems with its aircraft it will be hard to blame the pilots for these two“computer crashes”.
Marks: I have been dealing with Boeing most of my career. Although it’s a great company and a leader in aviation, unfortunately it is Boeing’s normal protocol to blame pilots and operators when something goes wrong. But here we have a clear product defect that cannot be contested. This second accident makes it impossible to blame the pilots. The pilots were vindicated because they followed Boeing’s published procedures.
Q: What will be the extent of responsibility of the company?
Marks: You have compensatory damages and punitive damages. Compensatory damages include intangible losses (like the loss of spousal or parental love and affection, pain, suffering, etc.) and tangible damages include loss of income and support. And all that can be calculated. But then you have punitive damages. The idea for this element is to punish and deter wrongful conduct. In these two cases, the punitive damages can be much more significant than the compensatory damages since Boeing put profits over safety.
Q: You are talking about civil law. Will there be also a criminal prosecution for involuntary manslaughter?
Marks: This is rare in aviation. In the US, a private party cannot start or participate in a criminal prosecution (unlike in Europe). But there is a grand jury conducting an investigation which will most likely focus on how Boeing circumvented the certification process. We filed our case before a Federal Court in Chicago, Illinois (where Boeing is located) so at the appropriate time we can add the US government and the FAA. If you want to sue the government in the US you have to give them notice before you sue them and that period is 6 months.
Q: You also have represented families of the Air France 447 disaster. Ten years after the accident there is still no sentence. And in the SAS/Linate tragedy, your clients have been waiting almost 20 years with no end in sight. What’s the difference in the US?
Marks: The US courts are the most independent and efficient courts in the world. For instance, the Linate(Milan) accident with a MD-87 occurred in 2001. We are still at the trial level and some of our clients have died, lost homes, were unable to finish their education. Justice delayed for 20–30 plus years is truly justice denied. In the US, Federal Judges move discovery, the truth is uncovered, changes are implemented and the families can count on a fair and just result in 1 to 3 years.
Q: What does that means in damages the company will have to pay?
Marks: In aggregate? We are talking many billions of dollars. This could be the largest aviation case in world history. It wouldn’t surprise me if Boeing attempts to avoid a US court and look for another jurisdiction, a more “convenient” court even though everything is in the US. But there is really not a lot of mystery here: the company whose product has defects is based in the US, has most of its employees in the US, designed and “tested” the product here, is blessed with the finest and most reliable judicial system in the world….
Q: Do you think engineers or people involved in the certification process could be criminally prosecuted?
Marks: That is relatively rare in the US, which is different in Latin America and Europe. There was a precedent in 1996 when a Valujet MD aircraft crashed in the Everglades. There was a criminal prosecution for lying on federal forms or “pencil whipping”. This is when you falsify documents, where you say you did a procedure which you didn’t. We will see what happens. Did Boeing do something improper to obtain certification? Did regulators deliberately look the other way? It’s really a shame for Boeing which is such a great company. Very troubling its image is getting so tarnished. They had a good record, but this mistake is gross and inexcusable.
Investigative journalist Tom Dieusaert is the author of “Computer Crashes, when airplane systems fail (2017)”
