Trial Magazine

In October 2018, Lion Air Flight 610 crashed, killing 189 people. Five months later, Ethiopian Airlines Flight 302 crashed, killing 157 people.¹ Both flights involved Boeing 737 Max jets.² These people put their faith in Boeing to make a safe airplane, but Boeing failed to deliver. Instead, Boeing designed and marketed its 737 Max planes with a new maneuvering characteristics augmentation system (MCAS), a software system created “to enhance the pitch stability of the airplane.”³ But the software was activated because of erroneous data, and it pushed the nose of the plane down. Boeing intentionally failed to provide pilots with instructions about the new MCAS to dupe Federal Aviation Administration (FAA) regulators into certifying the plane and to satisfy airline requests for planes that did not require special training.⁴

In the aftermath of the crashes, questions emerged about decision-making at Boeing and the FAA regarding the new MCAS on the 737 Max jets. Government officials are looking for ways to improve aviation safety and ensure that these crashes are not repeated.

The Case Against Boeing

Several cases against Boeing have been filed in U.S. courts. The majority of these are wrongful death cases brought on behalf of the families who lost loved ones, alleging product defect and even intentional misconduct, among other claims.⁵ Other cases filed against Boeing include shareholder derivative actions, claims by pilots for lost wages from the plane groundings, and claims by airlines for financial losses resulting from flights canceled after the groundings.

Many of the wrongful death cases were filed in federal court in Illinois, where Boeing is headquartered. Boeing will pay the families of the 346 people killed $144,500 each from a $50 million financial assistance fund.⁶ Boeing has stated that families using the compensation fund will not be barred from pursuing other remedies in court.⁷

But the personal injury litigation is facing a significant jurisdiction issue: Boeing has threatened to move the Lion Air cases to Indonesia—where most of the victims and the pilots were from and where the aircraft was maintained before the crash—should settlement talks fail.⁸ The Indonesian courts would have jurisdiction to hear the cases, but the victims’ families would not have the same rights as they would in U.S. courts—such as a right to discovery and a right to a jury trial.

Congressional Response

These tragedies also have forced Congress to take a hard look at Boeing, the FAA, and the current certification process. Committees in the House of Representatives and the Senate investigated Boeing and the FAA, asking for thousands of documents to understand what went wrong, who knew about it, and when. In October 2019, after members of Congress had a chance to review some of the documents, Boeing CEO Dennis Muilenburg⁹ and Chief Engineer John Hamilton testified at House and Senate hearings about accountability and safety mechanisms that were severely lacking at Boeing and, to a larger extent, in the aviation industry.¹⁰

At the Oct. 29 Senate Commerce, Science, and Transportation Committee hearing, Chairman Roger Wicker (R-Miss.) and ranking member Maria Cantwell (D-Wash.) both expressed concerns about the certification process for the 737 Max, and Senator Cantwell further questioned the safety culture at Boeing. As the committee questioned Muilenburg, it was clear members had concerns about what Boeing (or at least some of its employees) knew about the problems with the 737 Max and Boeing’s communications with FAA regulators. The focus was on some of the more egregious examples, such as office messaging communications between Boeing employees that refer to an effort to “Jedi mind trick” FAA regulators during the certification process.¹¹ Those comments are indicative of Boeing’s safety culture, problems with the certification process, and the potentially “too cozy” relationship Boeing has with the FAA, which many members commented on during the hearings.¹²

The next day, the House Transportation and Infrastructure Committee held its own hearing on Boeing’s role in the crashes, specifically through its design, development, and marketing of the 737 Max. Chairman Peter DeFazio (D-Ore.), along with other Democrats on the committee, were very concerned about what Boeing knew about the problems with the MCAS system, when it knew of these problems, and why the system was designed with clear issues in the first place. Ranking member Sam Graves (R-Mo.) focused on the impact of automation on pilots and the lack of appropriate pilot training. Some anti-civil-justice members on the committee also pointed to other causes of the crashes, such as the lack of pilot training, instead of Boeing’s culpability.

Rep. Hank Johnson (D-Ga.) asked Muilenburg whether Boeing was planning to move the product defect cases filed in Illinois district court to Indonesia should settlement talks fail. Because Boeing is headquartered in Illinois, the district courts are essentially their backyard. Perhaps unsurprisingly, Muilenburg responded that he was not aware of the current legal strategy in those cases. Chairman DeFazio repeated this questioning several times, incredulous that Boeing’s CEO would not know his legal team’s strategy, and asked Muilenburg to follow up with the committee in writing about whether Boeing intends to move the litigation to Indonesia.¹³

Next Steps

The takeaway from the hearings was clear—something went wrong with Boeing’s design, marketing, and certification of the 737 Max and its MCAS technology. Congressional members have been working toward finding a legislative solution.¹⁴ The issue becomes whether legislation in this area will increase accountability and improve safety or risk having the opposite effect. Legislative ideas in this space will likely center around the two things Congress may be able to agree on: reforming the certification process and codifying safety requirements without preempting state law claims.

Certification reforms. The FAA’s current certification process, which involves self-certification by aviation manufacturers, drew significant criticism at the hearings. Reforming this process likely will be the goal of federal legislation. However, a legislative fix may be tricky to implement due to the FAA’s limited resources and capabilities.

Avoiding preemption. Any federal legislation also will need to preserve existing state law that holds aviation manufacturers accountable for the products they design, develop, and market. Inadvertent field or even conflict preemption can result from federal legislation that is not drafted with a clear saving clause that explicitly indicates Congress’s intent not to preempt state statutory and common law. Federal legislation that creates a floor for safety regulations and explicitly allows for more stringent state laws and regulations as well as private enforcement is the best solution to fixing the current system.

Families of the crash victims, present at both hearings, sent a powerful message to members of Congress about what happens when safety is not a priority. The hope is that Congress will respond appropriately to the message and pass legislation allowing aviation manufacturers to be held accountable in federal and state courts.

Bonnie Johnston is AAJ’s federal affairs counsel and can be reached at bonnie.johnston@justice.org. 

Notes

1. Thomas Maresca, Indonesian Lion Air Passenger Plane Crashes Into Sea With 189 on Board, USA Today (Oct. 29, 2018), www.usatoday.com/story/news/world/2018/10/29/indonesia-lion-air-plane-crash/1804557002/; Eliott C. McLaughlin & Laura Perez Maestro, Law Student, Scholar and Politician’s Family Among Victims in Ethiopian Airlines Crash, CNN (March 12, 2019), www.cnn.com/2019/03/10/africa/ethiopian-airlines-crash-victims/index.html. 
2. Boeing has developed four variants of the 737 Max, the Max 7, 8, 9, and 10, which offer different seating capacity. See Boeing, About the Boeing 737 Max, https://www.boeing.com/commercial/737max/.
3. Boeing, 737 MAX Software Update, https://www.boeing.com/commercial/737max/737-max-software-updates.page. 
4. Rep. Peter A. DeFazio & Rep. Rick Larsen, Committee of Transportation and Infrastructure Dear Colleague Letter (Nov. 4, 2019), https://tinyurl.com/s6hr6bn. 
5. Luz Lazo, More Families Sue Boeing Over Lion Air Crash, Citing Defective Design and ‘Inadequate Safety Warnings,’ Wash. Post (March 21, 2019), https://tinyurl.com/y5ozease. 
6. David Shepardson, Boeing to Pay 737 MAX Crash Victims’ Families $144,500 Each, Reuters (Sept. 23, 2019), https://tinyurl.com/y38karhx.
7. Press Release, Boeing, Boeing Dedicates $50 Million of Pledged $100 Million to Near-Term Relief for Families of the Victims of the Lion Air Flight 610 and Ethiopian Airlines Flight 302 Accidents (July 17, 2019), https://tinyurl.com/tsxee2v. 
8. Janan Hanna, Boeing’s Lion Air Crash Lawsuits May Move to Indonesia, Bloomberg (Oct. 17, 2019), https://www.bloomberg.com/news/articles/2019-10-17/boeing-s-lion-air-crash-lawsuits-may-get-moved-to-indonesia. 
9. On Dec. 23, 2019, Boeing announced that Dennis Muilenburg resigned from his position as CEO and board director. See Press Release, Boeing, Boeing Announces Leadership Changes (Dec. 23, 2019), https://tinyurl.com/wr4dg7b. 
10. Hearing, U.S. Senate Committee on Commerce, Science, and Transportation, “Aviation Safety and the Future of Boeing’s 737 MAX” (Oct. 29, 2019), https://tinyurl.com/y3ddqhve; Hearing, U.S. House Committee on Transportation, “The Boeing 737 MAX: Examining the Design, Development, and Marketing of the Aircraft” (Oct. 30, 2019), https://tinyurl.com/yyt7qxz4.  
11. David Shepardson, FAA Turns Over Emails From Former Boeing 737 Pilot, Reuters (Oct. 18, 2019), www.reuters.com/article/us-ethiopia-airplane-faafaa-turns-over-emails-from-former-boeing-737-pilot-idUSKBN1WX2LE.
12. October 2019 House and Senate hearings, supra note 10.
13. Press Release, U.S. House Committee on Transportation and Infrastructure, Following Recent Hearing on the Boeing 737 MAX, Chair DeFazio Presses Boeing CEO for Additional Information About Decisions on MCAS, Grounding the Aircraft, CEO Pay, Boeing’s Legal Strategy and More (Nov. 15, 2019), https://tinyurl.com/vxjr99n. 
14. Sen. Maria Cantwell (D-Wash.) has introduced a bill that would codify some of the National Transportation Safety Board recommendations after the crash. See Aviation Automation and Human Factors Safety Act, S. 2703, 116th Cong. (2019). More legislation in this area is expected.