Kenyan relatives of a crash victim mourn at the scene where the Ethiopian Airlines Boeing 737 Max 8 crashed shortly after takeoff on Sunday killing all 157 on board, near Bishoftu, south-east of Addis Ababa, in Ethiopia on Friday. (AP Photo/Mulugeta Ayene)

Kenyan relatives of a crash victim mourn at the scene where the Ethiopian Airlines Boeing 737 Max 8 crashed shortly after takeoff on Sunday killing all 157 on board, near Bishoftu, south-east of Addis Ababa, in Ethiopia on Friday. (AP Photo/Mulugeta Ayene)

Boeing’s lawsuit risks soar around second 737 Max disaster

The company could face substantial payouts to the families of both the Indonesia and Ethiopia crashes.

By Bob Van Voris and Janan Hanna / Bloomberg

Lawyers are already targeting Boeing for Sunday’s Ethiopian Airlines disaster even while investigators are still trying to figure out what caused two 737 Max 8 jetliners to go down in a span of five months, killing 346 people.

Boeing faces the prospect of substantial payouts to the families of passengers if it’s found responsible for both the Indonesia and Ethiopia crashes. But legal experts say the second one could prove even more damaging for the Chicago-based company. That’s because plaintiffs will argue the manufacturer was put on notice by the earlier tragedy that there was something dangerously wrong with its planes that should have been fixed.

The second crash “bolsters our claims that Boeing knew or should’ve known that the plane was defective and did nothing about it,” said Brian S. Kabateck, who represents the families of 12 victims of the Lion Air crash in October off the coast of Jakarta. “They should’ve issued a warning or notices and they didn’t. And as a result, all these people died.”

Another litigation headache for Boeing is the possibility that airlines may sue for the money they’ve lost by being forced to ground the 737 Max 8’s in their fleets, possibly through April or longer.

Peter Pedraza, a Boeing spokesman, declined to comment on the company’s potential legal liability in the two crashes. Boeing issued a statement this week saying it still has “full confidence” in the 737 Max models. Boeing Chief Executive Officer Dennis Muilenburg said the company was doing everything it could to understand the cause of the accidents, deploy safety enhancements and ensure that no more crashes happen.

Attorney Kevin Durkin, who specializes in plane crash cases, said that if Boeing knew of a defect in the 737 Max fleet before the crash, its potential liability would go up sharply — beyond just compensation for victims’ families for their losses.

“If you have a defective product and it turns out Boeing knew about it this could easily expose them to punitive damages,” said Durkin, a partner with the Chicago’s Clifford Law Offices who isn’t involved in the Lion Air litigation. “The standard is whether they acted with a ‘conscious indifference’ to the safety of others.”

Boeing is preparing fixes to anti-stall software that baffled pilots of the downed Lion Air jet by pitching the plane’s nose down dozens of times before it crashed in the Java Sea. The U.S. Federal Aviation Administration on Wednesday grounded 737 Max models after data showed suspicious parallels between the erratic, six-minute flight of the Ethiopian Airlines plane and the Lion Air flight.

“The circumstances of both Max 8 crashes suggest a possible design problem,” Mike Slack, an aviation lawyer with the Austin, Texas, firm Slack Davis Sanger said in an email Thursday. “We also know that from Lion Air and the subsequent Boeing emergency safety notice, that these Max 8s require more and different training than its predecessor, especially related to the plane’s Maneuvering Characteristics Augmentation System.”

Under an international treaty covering airlines’ liability for international air crashes, Ethiopian Airlines could try to limit its own liability to passengers by claiming that Boeing was 100 percent responsible for the crash.

Boeing could counter that the Max 8 planes were designed and manufactured with the latest technology and with due care, said Timothy Ravich, a professor of aviation law at University of Central Florida in Orlando. The company could claim there was no way of anticipating a crash.

That defense would obviously be complicated by the earlier Lion Air crash if it’s determined they were caused by similar design or manufacturing problems.

Or Boeing might try to spread the financial pain to other companies, if it determines that a defective component or contractor contributed to the disaster.

“Boeing could sue some suppliers,” Ravich said.

Because Boeing is based in Chicago, most of the lawsuits against it connected to the Ethiopian Airlines crash will probably be filed there, said Curtis Miner, a partner at the Miami law firm Colson Hicks Eidson. Dozens of suits over the Lion Air crash are already pending in Chicago federal court.

But that doesn’t mean the same set of liability laws will be applied to all the cases. A major part of the litigation will be over which countries’ laws apply, Miner said.

The families’ lawyers will seek to apply U.S. law, particularly the laws of plaintiff-friendly U.S. states. The best-case scenario for potential defendants, including Boeing, is for claims for passengers from Ethiopia and Kenya to be considered under the laws of those countries.

“The U.S. has the most expansive view of damages of any country in the world,” said Miner, whose firm represented families in the Lion Air crash.

Talk to us

More in Herald Business Journal

Small business relief effort inundated with 850 applications

The economy in and around Everett has struggled amid fallen revenues and uncertainty about the future.

Marysville drivers wait overnight for Chick-fil-A opening

The popular chicken restaurant began serving at 6:30 a.m. Thursday. Police plan to guide traffic for days.

Tulalip Resort Casino and Quil Ceda Creek to open Tuesday

Guests must wear a mask and occupancy is limited, the Tulalip Tribes announced Wednesday.

As Arlington gym closes, a Snohomish barber continues to cut

PA Fitness closed after the state attorney general filed a lawsuit. “We would lose,” a co-owner conceded.

‘Hundreds of millions’ in bogus jobless benefits paid out

Washington state has been reported as the top target of a Nigerian fraud ring.

FAA says it will let Boeing employees vouch for plane safety

The agency defended the current system but identified areas for improvement. Some lawmakers disagree.

Fraudsters using local identities for phony jobless claims

The Everett School District, for example, saw about 310 false claims using employees’ personal information.

State sues an Arlington gym for violating stay-home order

“It is my constitutional right to be open,” says a co-owner of PA Fitness. He plans to countersue.

Heavy traffic expected when Chick-fil-A opens in Marysville

The city warns there will likely be delays for days along 88th Street NE. near the new restaurant.

Somers announces $14 million in relief for small businesses

One program will target aerospace companies. The other will focus on service and retail industries.

Paine Field terminal to close for 71 days of ramp repairs

Alaska is down to one departure per day due to the coronavirus outbreak’s effect on travel.

Quarantini time! New state rule allows cocktails to-go

Enjoy a margarita or a Manhattan with lunch or dinner to go. At Buck’s in Everett, you keep the mason jar.