Resistance to commenting on this - to my mind anyway - surprising wrinkle in the lawsuit has crumbled. I may say something here that will be controversial, or even worse.
Not having worked many personal injury or wrongful death lawsuits in Illinois, I'll ignore the legal technicalities which appear to have been "in the conference room" when the manufacturer's defense attorneys decided to litigate this issue. My gut reaction to the story was.... disgust. Quickly followed by realizing some further cynicism would be in order here. I mean, after everything that's emerged about how and why the 737 MAX debacles happened, there is no objectivity, and there is no limit to the disgust.
As for the legal counsel representing the families, I think it's fair to say that the very successful (as in very, very) lead counsel does not have a reputation for making way-out arguments just to add to his net worth. He's successful way beyond that level. Which, however, doesn't answer the issue of what damages should be allowed....
Here's what bothers me the most. You're the PF or PM, and the event as documented by the flight recorders and as explained in the report (flawed as it may be) is unfolding, and as your "life flashes before your eyes" - that isn't pain? Or take another well-known air crash disaster: as American 191 indeed plummeted into Elk Grove Village, Illinois, just a short distance from the O'Hare runway where the engine on its left wing had separated, those aviators, stunned at what the airframe was doing, were not experiencing pain of impending, untimely death?
And let's not forget that airline pilots have come to be known as "drivers." I get in the driver's seat of my motor vehicle, buckle my safety belt, and at most I have 2 or 3 other people in the car. Aviators driving have hundreds in their flight vehicle. The drivers love to fly, and - not "but" - and it is an awesome responsibility. Seeing the ground rushing up, or the ocean, that isn't a "pain event" in the specific context of airline avaiatorship? Perhaps I'm romanticizing the commitment felt by drivers, but I will not accept the argument that it isn't excruciating when such an accident unfolds (even if it fails in a Chicago courtroom).
I hope it's not out-of-line improper to speak of the deceased pilots, in either crash. (The fact that the DC-10 was a "perfectly flyable airframe" - its stall speed fatally altered unbeknownst to its drivers - haunts me... as a reason to keep trying to bump my career over into aviation law and policy, especially safety.)
Of course, what passengers experience is a different set of facts to a large extent. But not completely different. I hope the judge hearing this case has some very dedicated law clerks to explore the legal issues to assist the court in making a ruling. "Hard cases make bad law", so the saying goes, but it's up to the law clerks to move the court's thinking to a higher plane.