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From Products Liability Law Daily, April 8, 2019

Boeing faces lawsuit arising from Ethiopian Airlines crash

By Georgia D. Koutouzos, J.D.

Claims that 737 MAX 8 had defective flight control system mirror allegations in Lion Air crash.

A lawsuit arising from the crash of Ethiopian Airlines Flight 302 has been filed in Illinois federal court against Chicago-based Boeing Co. and others by the survivors of a young American woman who perished in last month’s crash. Among the claims asserted against the aircraft manufacturer are negligence, defective design, and failure to warn with respect to the at-issue aircraft, a Boeing 737 MAX 8 that experienced flight control problems immediately after takeoff and uncontrollably pitched downward into the ground near the town of Bishoftu, Ethiopia (Stumo v. Boeing Co., April 4, 2019).

On March 10, 2019, Ethiopian Airlines Flight 302 took off from Addis Ababa to Nairobi, Kenya. Within minutes of its departure, the pilot radioed that he was having flight control problems and requested permission to return to the airport in Addis Ababa. According to the flight crew, the plane was accelerating abnormally and was oscillating up and down. Shortly thereafter, all communication with Flight 302 stopped and the plane crashed into a field, killing all 157 people on board, including a 24-year-old American health financing analyst headed for Kenya and Uganda to work on a Gates Foundation health initiative.

The abnormal acceleration and vertical oscillations mirrored the problems experienced five months earlier by the pilots of Lion Air Flight 610, a scheduled flight operated by PT Lion Mentari Airlines from Jakarta to Pangkal Pinang, Indonesia, that crashed into the Java Sea and killed all 189 passengers and crew [see Products Liability Law Daily’s March 22, 2019 analysis]. Investigations into both crashes are ongoing, but preliminary reports indicate that both airliners—Boeing Model 737 MAX 8s—may have experienced the same malfunction, i.e., an unwarranted activation of the aircraft’s Maneuvering Characteristics Augmentation System (MCAS), which is supposed to stabilize the plane in flight. In the days since the Flight 302 crash, all countries have grounded Boeing 737 MAX 8 and 9 aircraft from continued operation.

The young woman’s parents filed suit against Boeing, Ethiopian Airlines, and Rosemount Aerospace, Inc., the manufacturer of flight sensors used in Boeing aircraft. According to the decedent’s representatives, following the Lion Air crash, Boeing knew or had reason to suspect that a malfunction in the aircraft’s external sensor and MCAS may have been responsible for the accident. The aircraft manufacturer issued an Emergency Airworthiness Directive ("AD") identifying the potential danger presented by the flight control system but failing to provide clear instruction on what pilots should do in the event of a sensor failure. Boeing also failed to insist on further training of pilots to deal with the defective sensor or MCAS software, downplayed the significance of the threat presented by the MCAS, and did not call for any aggressive action to prevent further incidents, the complaint asserted. Causes of action asserted against the company include negligence, breach of warranty, strict liability, failure to warn, and civil conspiracy, while Rosemount and Ethiopian Airlines face claims of negligence and strict liability.

Negligence. The complaint contends that Boeing breached its duty of care to the decedents with respect to the design, manufacture, inspection, testing, assembly, certification, distribution, and/or sale of a safe, airworthy aircraft—including the failure to train, instruct, and/or issue advisory warnings necessary to assure the safe operation, control, management, and/or maintenance of the 737 MAX 8 aircraft.

The potential harm to airline passengers, pilots, crews, and the public from the 737 MAX 8 was objectively foreseeable both in nature and in scope and was subjectively known to Boeing because of the company’s own safety assessment of the sensor and MCAS during development of the aircraft, which revealed potential problems with the system, as well as the evidence that flight control issues caused the crash of Lion Air Flight 610, complaints lodged by pilots in the Federal Aviation Administration’s Aviation Safety Reporting System database regarding the performance of the MCAS, the lack of clear instruction and training, the occurrence of unexpected MCAS dives/flight control issues, and Boeing’s identification of a software upgrade to address problems with the sensors and flight control system in the weeks and months prior to the crash of Flight 302.

Strict liability. The 737 MAX 8 aircraft and its component parts were being used for the purposes of which they were manufactured, designed, inspected, sold and intended to be used, and in a manner reasonably foreseeable to the aircraft manufacturer. The 737 MAX 8 and its component parts were defective, dangerous, unsafe, and not airworthy by reason of defective manufacture, design, warning systems, inspections, testing, service, and/or maintenance of the subject aircraft and its component parts. Further, the aircraft and its component parts were in substantially similar condition to their original condition at delivery to Ethiopian Airlines.

Failure to warn. Ordinary consumers, including but not limited to airlines, flight crew, and passengers, would not have recognized the potential risks presented by the aircraft’s unreasonably dangerous and defective design, the complaint maintained. In that regard, both Boeing and its federal regulators unlawfully provided incomplete and inadequate warnings to pilots, passengers, and the public that severely understated and downplayed the serious known safety risk associated with continued flight of the 737 MAX 8. The decedent relied on this to her detriment, being duped into a false sense of security about riding on a 737 MAX 8.

Civil conspiracy. Boeing and the Federal Aviation Administration allegedly deceived the public as to the safety of the 737 MAX 8 aircraft and its component parts and systems by: (1) certifying the aircraft and the MCAS as safe based upon false and/or inaccurate information; (2) failing to provide clear instruction in flight manuals or informing pilots as to automated systems embedded in the 737 MAX 8 aircraft; (3) denying technical experts the necessary time or resources to thoroughly evaluate the 737 MAX 8 aircraft; and (4) compelling technical experts to certify the aircraft despite their concerns about the safety of the 737 MAX 8—all in violation of applicable laws, regulations, and mandatory duties.

Damages. The complaint is seeking compensatory and punitive damages and is demanding a jury trial as to all claims in the action.

The case is No. 19-cv-02281.

Attorneys: Robert A. Clifford (Clifford Law Offices) and Joseph W. Cotchett (Cotchett, Pitre & McCarthy, LLP) for Michael Stumo and Nadia Milleron.

Companies: Boeing Co.; Ethiopian Airlines; Ethiopian Airlines Enterprise; Ethiopian Airlines Group, Inc.; Rosemount Aerospace, Inc.

MainStory: TopStory ComplaintNewsStory AircraftWatercraftNews DesignManufacturingNews WarningsNews DamagesNews IllinoisNews

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