Boeing 737 Max Recertification Testing - Finally.

[WillowRun 6-3]

Significant Pretrial Win for Plaintiffs in Federal District Court in Chicago

United States District Court Judge Alonso has ruled in favor of the plaintiffs with regard to an issue of damages that has been noted and discussed on this forum. As framed by the Court, "whether plaintiffs can recover for emotional distress that their decedents suffered during the flight prior to suffering any physical injury." For those perhaps interested in reading the ruling as such, the case in the U.S. District Court for the Northern District of Illinois is 19 C 2170 (Consolidated), "In Re: Ethiopian AIrlines, Flight ET 302 Crash." (This SLF/attorney guesses that posting a pdf of a court decision won't be popular here.)

A few observations holding some relevance. The ruling delves incisively into the pertinent questions of Illinois tort law (including both Survival actions and Wrongful Death actions). What I think is significant - beyond the win for the plaintiffs of course - is that the Court had to "read around the law" - that is, evidently it realized that the issue to be decided was not resolved yet by good precedent and it had to conduct a process of law-finding, if you will, of its own. Not making law, rather interpreting it. lndeed, as the Court stated, following a methodical and quite careful review of caselaw precedents proffered by both sides, "where that leaves the Court is with little to go on in determining how to apply Illinois law to this case."

Notice, with the large number of international conventions and documents of official standing by which international civil aviation operates, nonetheless, a serious question of availability of damages turns on an interpretation of State law (here, Illinois, simply because that is where Boeing moved its corporate office). The law of the United States as a country figures into the legal reasoning insofar as the District Court must follow certain principles, in deciding what a particular State's law is, or would be if the State Supreme Court were presented with the issue. I'm not saying this just to talk lawyer-talk. It strikes me that there are legal processes for individuals to become lawyers in each of the 50 states, but not a United States-wide license to practice law. Would it be useful for such a licensure to exist for the practice of international civil aviation law as issues grow in complexity, technological change accelerates or advances at least, and as geopolitical conflicts impact airspace, aircaraft leasing and insurance, .... I could go on,.... but back to Chicago.

Here is a good summary of what the ruling decided: "A jury could reasonably infer from the evidence that will be presented at trial that the passengers on ET 302 perceived that they were going to crash, horrifically, to their certain deaths."

Part of the set of prior decisions the court considered was the litigation arising from the May 25 1979 crash of Flight 191 near Chicago O'Hare. In earlier posts I advocated that there is precedent, of a sort, to be found in that accident, as the aviators who so tragically perished in that crash certainly were aware, "horrifically, [of] their certain death." Disclaimer: I do not know whether the litigation that took place over Flight 191 included any development of the issue, in specific context of the pilots. But I'll track it down, because this ruling isn't gong to be the last time such an issue arises.

Finally, from the ruling:
To the extent Boeing’s argument is that the beneficiaries may not testify that their grief was increased by their contemplation of the emotional distress their loved ones must have suffered
in their final moments, the Court rejects it. Boeing does not appear to dispute that what happened during these final moments is part of the “process or manner of death.” And, as the Court explained
above, there will be evidence describing the “history of the flight” and “the aircraft’s movements” during those final few moments, the substance of which will not be new to the beneficiaries. Based
on this evidence, contemplation of what the passengers must have experienced as the airplane crashed is hardly mere speculation. There is sufficient evidence to support a reasonable inference
that these passengers experienced pre-impact fright and terror, and that experience is part of the “process or manner of death.” Therefore, the Court is not inclined to bar evidence of how
contemplation of that emotional distress affects the plaintiffs’ grief.