I think this must be some difference between US and UK law, or at least practice. Over here, if one of your employees does something that causes an accident, that's what your insurance and your legal costs cover. Called Employer Liability Insurance. If it impacts members of the public, that's Public Liability Insurance. There are others, like Professional Indemnity or Motor Vehicle Insurance, and anyone doing serious business with you will ask to see all the certificates. To avoid arguments over which of these is responsible, most companies place all these with the same insurer.

Weaseling out by insurers just doesn't significantly happen (I understand it does so more in the USA). If you smash into someone with the company vehicle, you, and thus the insurer, are liable. They can't evade it by saying you have been prosecuted for careless driving and thus outside the terms of the insurance. Most claims beyond being struck by lightning are brought about by doing something against some law somewhere.

I would suggest that from a practical matter the Boeing corporate culture was set by the C suite. It prioritized and incentivized fast and cheap over safe and good at every step. Again as a practical matter saying that Mr. Forkner was a rogue actor solely responsible for the MAX tragedy is laughable. However Mr Forkner's liability from a legal stand point is a whole different matter and one on which several other posters are much more qualified to comment on than myself. It would be very unfortunate if Mr Forkner was the fall guy and the senior management who were the true enablers of the broken Boeing system that produced the MAX, got off.

As an aside any lingering hope that Boeing learned the lessons from MAX and were making substantive change disappeared for me, at least, when they hid an uncommanded pitch down event on a 777X test flight. This only came to light after a FAA review of flight test raw data 7 months later. This review would not have been done except for the enhanced FAA scrutiny resulting from the lack of Boeing transparency on the MAX. The fact that anybody at Boeing though it was a good idea to hide an uncommented pitch down event after the MAX fiasco speaks volumes about the current corporate culture at Boeing......

Finally the lesson for everybody is take care what you say on any e-mail you send, it could come back to haunt you.......

That is the nub of it. Corporate culture is not the same as what the Directors put on the website. By the time they get their feet under the boardroom table - they know not to put things in writing.

I think this might have less to do with insurance and more to do with vicarious liability, acknowledging that UK/US law differs in this respect. Hopefully one of the lawyers will set us straight. In essence (and in the UK!) and employer is liable for the actions of an employee in the course of his/her employment, unless (UK) they have been 'on a frolic of their own, ie their actions are so unexpected and extreme that no employer could reasonably have anticipated or otherwise controlled events. So if this was a process in a UK court, Boeing would have to show that it had no way of knowing or expecting that Forkner would do what he did, or it would be liable for his actions rather than him. Given all that has been written or disclosed so far, and the admissions made in earlier cases, that would be an interesting proposition to put before a court.

Thank you for this pointer, it seems there is a (notable) UK/US difference of law. As this is a US situation, we (in the UK) can let this point end

Vicarious liability in English law - Wikipedia

The Story Of The Boeing 737 MAX https://www.npr.org/2021/11/29/10597...boeing-737-max

Killaroo, how right you are. The rise to the top of these organisations is generally fuelled by a sociopathic desire for attention and ambition. In the airline world this results in a motley group of greedy incompetents that in general were not actually very good at the piloting stuff who rise to the top. Without sounding too geriatric this was not really the case up to the late 90s when in fairness a few managers were capable at the day job, were genuine role models but now replaced by mainly money grabbing narcissists. The unacceptable face of capitalism I suppose. The Max story is horrendous and complicated. Boeing should hang their heads in shame. I was a humble airline pilot that first flew the 737 - 200 in 1979; it was essentially a C172 with jet engines, simple to fly and operate. Even I could see that the 737 series was at the end of the road with the NG and I was astonished when they cobbled together the Max. A tragic story.

Boeing should have done a Honda and moved the engines to the top of the wing for later versions;)

:}

So, the major client for the plane is demanding no sim training requirement for differences, lest a contractual penalty befall the OEM...
ACT 1, SCENE 1: Pilot walks out for his stroll around the toy, gets to where he expects to see a blender.... pilot's head swivels left and right, and slowly pans upwards, [jaw drops]
Suggest replace Tom Cruise in scene with Rowan Atkinson.

The functional structure of the ODA used by Boing is going to get some air time in court I would wager, to ascertain how the repurposing of a system came about and was permitted to get to the point it did of latent risk. The indictment would suggest that the grand jury at least considers that the pilot had an obligation to report to the FAA his discovery in the sim of an issue, however, I would suspect that the mail servers will have considerable communications with those involved in the system from the indicted party. If the pilot kept that information. to himself, then it is curious that he was indicted.... If some info was passed to random bystanders that results with sufficient evidence for a grand jury to contemplate wire fraud (emails etc... ) then it seems extraordinary that the same info was not provided to those on the relevant teams of the design approval team signing off the PSCP steps and statements of compliance.

I would think the trial will result in some major expansion of parties needing legal representation.

If that is not the case, then an insanity defence would appear reasonable, as it appears rationality has decided to leave the region north of Mexico and south of Canada in recent years.

The OEMs management has an extensive history of issues with ethics, and none of the Max story appears to suggest that this once-proud icon of engineering excellence has any intention of acting ethically. The pilot's actions were not in a vacuum, they were within the culture that pervades the OEM and which has resisted calls for it's change. The pilot did not design the system, change the system or fail to determine the consequences of that undisclosed change, He recognized the issue in a simulator, and then acted as he did, within the culture of the system that is the responsibility of the corporate management. The board has known for 1/4 century that the culture they created was rotten and that consequences that impacted engineering performance and product quality resulted from their inaction.

The US federal court will act it's way to find a culprit, and the corporation will be unscathed, as this is the way things are in a free market, unfettered by responsibility or ethics to the decision-makers.

SWA eventually will need to come to terms with their 1-type policy; which has already had variations through their takeovers of other fleets. The 737 growth capacity is limited and the fuselage went past being an optimal configuration last century. Time to do a greenfield design and one without corporate involvement in engineering decisions.

P.S.: SAFETY:
Walk around Renton or Everett, and you find hard hats, ear defenders, eyewash stations, fire extinguishers, and the usual plethora of posters extolling the virtues of OH&S compliance. There are no posters indicating that the actions of the corporate leaders impact the process safety of the company and the safety of their product. There is an utter disconnect between the financially driven component of our western models of industry and the desire to comply with a product standard, and the management gets a free pass, the schmuck at the end of the line making monthly mortgage payments gets to take the hit for the cynical corporate management. Boeing is tarred with the same brush as BP is, as are most of our major institutions. Deepwater, Texas City, B737 Max, B737 ring frames, B767 tanker contract version 1. etc.

This is important. A person (FAA delegate or ODA member) signed the 8130-9 form, which in part says:

Which says in part:

Which include in small part (my bold):

The Boeing test pilot is one of a number of people who would have to have known that (c) above was iffy, or non compliant, yet the Statement of Conformity was still signed for the FAA. And, that form even has a block into which deviations may be reported, so if in doubt, report.

This is not the pilot's responsibility alone, hopefully the investigation will expand to consider the entire ODA role as it relates to this design approval, and who else acting as a delegate for the FAA found design compliance, where it was not demonstrated.

fdr
Expecting the criminal defense attorney for the former chief technical pilot to plan, initiate and complete a factual investigation which would go beyond and go deeper than the investigations already conducted probably is unrealistic. The Transportation and Infrastructure Committee of the House of Representatives conducted investigations a lot more focused and effective than what one typically sees from the Congress. Other lawsuits also have yielded (presumably) a lot of factual material - prime example, the shareholder derivative lawsuit in Delaware. To think that this defendant in federal district court in a criminal case would have resources to dig deeper and into other subparts of the overall subject matters might be playing a devil's bargain or game.

To my knowledge there isn't any format in United States law and government for a process like an inquest in which the sole, exclusive, solitary goal is to unearth all the relevant and material facts, or as close to all such facts as humanly possible. Even the House T&I Committee staff work - which I've commended in earlier posts on this thread and others - is constrained by the "every two years cycle" of the Congress, perhaps to a significant extent. And -- while there obviously have been several "administrative" inquiry panels, notably the JATR, if at this late date there are factual gaps about precisely how and where this defendant was a cog in the machine, then those gaps represent and constitute a deeper problem.

Perhaps Boeing's role as a major defense supplier has deterred more aggressive and effective inquiries, or emboldened Boeing to get ahead of the game where it could - or both. And I've read stuff, not that I would be able to cite it here, articles that draw links between participants and members in a network of contacts built around people keeping Boeing's legal skirts clean. (Melvin Belli, the famed 1960s-era "King of Torts", once remarked that he wanted to hire only those young lawyers who wanted to get into the courtroom to vindicate rights of people who had been wronged, rather than mercenary types whose goals in law practice were nothing more than keeping some corporation's "legal skirts clean." Belli was interviewed in The Playboy Interview in circa 1967 and the quote is from there.) Whether the legal eagles for Boeing have been more like vultures, I don't know and would not speculate - but it has been suggested in the press.

How to assess possible solutions to a business enterprise's "culture" which has shown itself to be broken as badly as Boeing's has shown itself in this case, that is beyond the scope of this post and probably also beyond this forum.

Some excellent posts here, especially the last one from fdr. Very well written imo.
The Boeing pilot needs a kick in the nuts for sure but we all know where the true responsibility lies.
I hope that the company can change for the better once everything is settled.

I admit that assuming that justice is a synonym of legal process is optimistic at best, naiive at worst. However, the accused party will plead a response to the charges, and will quite likely mitigate his culpability to be that of a minor cog, the Nuremberg defense. I would expect that he holds a wealth of information on who else and why. The choice of a fraud charge and by process, wire fraud is curious, it would appear to minimize the potential for the defendant to expand the pool or responsibility, except for the 3rd element of the charge, where I would expect revelations to be made. Simply, if this was me, I would be making a defence that the "US v.." was not expected to rely on the lonely information of the cog sitting at the defence table (english translation: "standing in the dock",UK can't afford seats, before and certainly after Brexit; at least the "bring in the guilty party" in the US FC will have a seat for a while... ) it was expected to rely on the information from all parties that had responsibility for the "feature". You can blame the lone gunman in the repository window, "he was a rogue, an exception..." but when the whole stinking mess comes out, then it looks more like the system shares responsibility for the consequences of the management's actions and failures to act.

Had the charge been an 18USC §1001 matter, then the accused may not have need for a defence that mitigates his alleged culpability.

If the tent pole is not pulled down on this circus, it will certainly happen again, just ask NASA.

Does anyone believe that the accused decided to write emails "and do the other things... and the others [things] too ...."#, matters he is accused of to get better parking at Renton? For self-interest? That is not itself a defence for the charge, but it will weigh on the mitigation and whether free board and lodging for 100 years ensue at one end of the spectrum, or whether the accused gets his parking validated.

# JFK, MLK were orators, today, we have... Trump, Johnson, Deven's Cow... but at least we have gained memes. :ok:

Small point of order, defendants sit during an English trial. :O

General Sir Anthony Cecil Hogmanay Melchett, VC, KCB, DSO of 12":1' fame would suggest otherwise. :}

Reuters update 14th december 2021
https://mobile.reuters.com/article/amp/idINL1N2SZ2FT

suggests the trial has been moved to february 2022 ... can anyone conform that?

.... quotes...

Lawyers for Mark Forkner said the FAA official with personal knowledge of the 737-MAX contacted the government and said Forkner "is a 'scapegoat' and should 'not be charged.'" The court filing on Monday did not disclose the official's name.

Boeing did not respond to a request for comment. The FAA did not immediately comment. The U.S. Attorney's Office in Northern Texas, where the case is being heard, declined to comment.

The filing also included parts of a PowerPoint from an unnamed FAA employee that defense lawyers said contain new disclosures about a key system known as MCAS that should have been disclosed by Boeing’s engineering team.

Boeing top management hopes, that their 2.5 billion dollar "Get out of jail free" card will still be valid. They bear the ultimate organisational responsibility no matter what.

More from Reuters

There was an article in the Seattle Times a few weeks ago stating that Congress wanted the FAA to go after at least two Boeing ARs who (allegedly) intentionally deceived the FAA.

https://www.seattletimes.com/busines...max-employees/

This isn't going to stop with Forkner...

Because it is very unlikely that Pilot Forkner had ODA/FAA delegation to make a finding of compliance for some of the design requirements for which a finding was made, but compliance really had not been demonstrated (25.1309, for example). The presentation to the FAA that the 737 Max with MCAS was worthy of certification was obviously a team effort at Boeing. The rest of the team members are probably identifiable because of what they did sign for, as opposed to what they should not have signed for.

Not over yet. Boeing's deal with the DJ, which combined a small penalty (on top of already agreed payments) with white-washing of their criminal responsibility, is being challenged:
Families of the crash victims are suing the US. They accused the justice department of denying them an opportunity to weigh in on a criminal investigation into Boeing under a 2004 law meant to protect victims of crime and their representatives. They are asking a federal judge to force the department to turn over documents related to that investigation and to revoke the company’s protection from further criminal prosecution on the matter.

A recent Seattle Times article reports the "scapegoat statement" by an undisclosed FAA employee.

As facts or assertions about factual matters about Forkner's words and actions have been disclosed, and as the overall series of events and communications in these matters has become more clearly known, a possible connection between some aspects of the overall story has seemed intriguing. With these latest revelations as well as what this SLF/att'y takes as a deep and wide consensus among the pilot community that Forkner indisputably is being made a scapegoat, I'm going to suggest a possible connection.

It is pretty well-established, is it not, that Southwest did not want the MAX to involve any simulator training time, that this issue was part of its collective bargaining situation, that there were significant financial penalties involved if Boeing did not deliver, and - though I haven't kept current with the lawsuit SWA's pilots' labor organization brought against Boeing - that Boeing made a series of direct representations to Southwest about fulfilling these conditions. And then, Forkner ended up being employed by Southwest, for a time after he left Boeing.

The very central role that Southwest's conditions for the 737 MAX played in the overall progession of events with the aircraft should be significantly helpful to the defense, perhaps very significantly helpful. That is, when looking for ways to describe and to place in context the "larger picture of responsibility" beyond what Mr. Forkner said and did (and what he omitted), the defense need look only as far as Southwest's conditions for the 737 MAX. And if legal counsel was thinking in a sufficiently anticipatory manner, during his stint at the airline, much groundwork could have been set in place by Mr. Forkner. Of course the Southwest portion of the overall 737 MAX debacles is just one such portion, but with Mr. Forkner's immediately successive employment there, it would appear to be one portion, at least, of the larger picture of responsibility which would be comparatively easy to put into evidence.

Specific information items in dispute in discovery
 

On Dec. 15 2021 the defendant's attorneys filed a motion to compel discovery, in other words a motion seeking an order by the court requiring the prosecution to turn over to the defense specific information. Taking some liberties here, I'm posting the section which describes, in detail, information the defense believes it is entitled to receive, but the government has not yet produced. First there is a section about the volume of discovery so far in this case (and "Brady" and "Giglio" refer to information the prosecution has to turn over because such information is exculpatory or impeaching). (I know this isn't a lawyers' forum, but a pilot is being held up as a scapegoat by the awesome power of the federal government, and perhaps his brothers and sisters among PPRuNers should, and do, care to know more.)

________________
At the outset, it should be noted that this case is not the usual criminal case. Rather, this case involves an enormous volume of discovery (15.4 million documents, comprising some 60,000,000 pages) and, even as continued, is on a rapid trajectory that makes it extremely challenging, if not impossible, for the defense to digest all of the information provided by the government before the current trial date, less than two months from now.
* * *
C. Specific requests to compel evidence.
In addition to a general order for the government to identify Brady/Giglio evidence in the already disclosed discovery, and to produce any Brady/Giglio material that has not yet been produced, Mr. Forkner also makes the following specific observations about particular items whose production was requested in Appendices A and C.

Appendix A, Items 3 & 3A: Mr. Forkner asked for production of evidence that what he experienced in the 737-MAX simulator on November 15, 2016 was not MCAS acting as designed, but rather simply a simulator malfunction. In response, the government points to grand jury testimony of, and documents relating to, Vince Pupo, DR 1079, and a presentation from TRU Simulation. See Appendix B, at 3. These answers are non-responsive. Mr. Pupo said that he does not know or remember whether, on November 15, 2016, the simulator incorporated a simulation of MCAS. Likewise, TRU Simulation has nothing to say about this, as they provided only hardware and did not know the software. In line with the government’s obligations under Brady, we move to compel the government to produce any and all evidence that Mr. Forkner did not experience MCAS on November 15, 2016, either because MCAS was not programmed into the simulator, or because the trimming that Mr. Forkner saw was an unrelated glitch in the simulator’s software which later got fixed by Boeing.

Appendix A, Item 4: Mr. Forkner requested several categories of evidence regarding, generally, (1) Boeing’s disclosures to the FAA about MCAS prior to the MAX crashes, including the low-speed expansion, as well as certain MCAS features implicated in the crashes; (2) internal FAA communications about those disclosures, including who at the FAA was aware of the expansion, when and how they learned of it, and what they did in response; and (3) the FAA’s own review of its communications with Boeing about MCAS, including any findings or criticisms related to the AEG. This evidence is relevant to establishing whether or not government witness Stacey Klein or others in the AEG in fact knew about the low-speed expansion – and therefore were not deceived – or should have known about the expansion – and thus have a motive or bias to point the finger at Mr. Forkner. As such, this evidence is potentially both exculpatory and impeaching. In response, the government points to a presentation Boeing counsel gave to DOJ and summaries of government interviews with FAA employees, but they do not identify where in the tens of millions of pages of FAA documents this evidence can be found. In line with the principles set forth above, the government “[who] has presumably reviewed the discovery in this case,” should be compelled to specifically identify documents responsive to these requests.

Appendix A, Item 5: Mr. Forkner requested evidence that a large number of personnel at the Federal Aviation Administration (“FAA”) had access to Boeing 737-MAX information on the “Share Point” system; and he particularly requested evidence that FAA employee Stacey Klein, a designated government witness, had such access and, if so, when and how she accessed that system. This evidence is potentially both exculpatory and impeaching, as it could show that Ms. Klein in fact knew or should/could have known about the MCAS expansion even independently of anything Mr. Forkner did or did not tell her. The government, however, refers us to a document range of some 3 million pages. Under the principles set out above, the government should be compelled to identify more specifically where the requested information is located.

Appendix A, Item 6: Mr. Forkner requested any and all evidence, including witness statements, that MCAS and MCAS’s expansion to low speeds was not material to the decision about what level of pilot training should be required for the 737-MAX. Such evidence is obviously exculpatory, since it would negate a critical element of each of the charges against Mr. Forkner. The government, however, simply referred us to “the interview reports and agent notes in this case, including those for both FAA and U.S.-based airlines’ personnel.” In line with the principles set forth above, the government should be compelled to specifically identify the witnesses who made such statements and the particular statements that they made, rather than simply pointing to a mass of discovery.

Appendix A, Item 12: Mr. Forkner requested evidence related to specific representations made by Boeing counsel to the government about Boeing counsel’s preparation of a key witness, who the government intends to call in its case in chief. Specifically, Boeing counsel prepared the witness “using all of the documents that counsel identified for DOJ in advance of [the witness’] testimony,” and after the testimony, DOJ told Boeing counsel that “the Grand Jury went as advertised with regard to [the witness].” Mr. Forkner asked the government to provide (1) the documents that Boeing counsel “identified for DOJ in advance of Loffing’s testimony” and (2) the content of how the witness’ testimony was “advertised” before he appeared. In response, the government points to the same notes referenced above and records of Loffing’s grand jury testimony and interviews. These answers are non-responsive. Obtaining answers is important: this witness claims to have remembered a key verbal conversation with Mr. Forkner “as part of the preparation for testifying in front of the grand jury,” and he places the conversation in a date range that he was “able to narrow [ ] down” with Boeing’s lawyers. Under the principles laid out above, the government should be compelled to either produce any additional notes and records of the referenced conversations, or confirm that they have none.

Appendix A, Item 14: Mr. Forkner requested evidence as to a June 7, 2013 internal meeting at Boeing that concerned how to minimize the certification and training impact of MCAS, but the government simply “refer[red us] to the discovery as to this request.” To the extent this implicates Brady (as we suggest in the last sentence of that item), the Court should definitely compel identification and/or production of the implicated Brady material. But even as to the Rule 16 implications of this request, it is inadequate to refer us to a range of 67.2 million pages of discovery. In order to expedite trial preparation for a February 7, 2022 trial date, the Court should compel the government to more specifically identify and/or produce the requested evidence.
_________

Appendix A, Items 3 & 3A

.. Is interesting. I experienced what I could only say at the time was uncommanded and erratic pitching during an airline assessment on the 737 Max back towards the end of 2017. I wasn't the only one. The instructor provided feedback to Boeing immediately. Boeing Training at LGW should have records. If not, these things should be documented henceforth. Just as important as FDRs.

I can't help wondering how he felt upon hearing the cause of both crashes. Guilt? Remorse? I'm sure he was aware of the fact that nothing was done by the managent with his doubts and remarks.

Not excusing the management at all, but the pilot did too little, and if ever “scapegoat” deserved to be prosecuted, he does.

Was Forkner not just a simulator tester and involved with Technical Publications such as VOL2? He wasn't a test pilot like the other 20 or so who actually put the Max through the test program aloft and who would have know EXACTLY how the Max behaved. The simulators during development are pretty crude representations of the real aircraft. So how can one man fairly low down the knowledge tree be held responsible? The design engineers would have had far more knowledge than Forkner too. All very strange and smells like a case of passing the buck. Not to say that what he did was good - it was not. But did this one low level guy change the course of the 737 development program?
Retd Guy

Though Pilot Forkner is not singularly responsible, he is responsible. As a member of a certification team, he is required to produce written reports of the design compliance of his testing. That includes an understanding of what the design requirements are, and how they have [or have not] been complied with. As a part of that, he, or one of his team members, also had to sign a declaration that there were no unsafe features associated with what he had been involved in testing. (Not unlike an aircraft in service really - if you've just flown it, and you think there's a defect, you report it for the safety of the next pilots and passengers!). So if, in his capacity as a pilot declaring the design compliance has been demonstrated, he either does not notice a compliance failing, or conceals it, he should be held to account. Otherwise, how can the public have faith in the certification system?

ANY pilot who flew either the aircraft or the simulator and experienced uncommanded nose down pitch should have screamed long and loud about this unbelievable situation. They all are responsible.

Trial date moved back again
 

The start of the trial at the USDC of Northern Texas has been moved again. Now from Feb 7th to March 7th, 2022.

Reason again, to give his lawyers more time to shift through the millions of documents and prepare his defence.

And the trial will have a somewhat narrower scope once it does begin. The federal District Court judge has dismissed the part of the indictment against Mr. Forkner that alleges fraud relating to aircraft parts, reportedly on grounds that MCAS was intangible software code, and such code is not within the legal definition of "parts" (based on reporting in WSJ).
Still pending are counts against which the defense is seen as likely to argue no fraud or deceit occurred, given the fact that FAA already knew the material facts about MCAS at the time of Mr. Forkner's allegedly criminal interactions with FAA.
On a related note, also reported is continurd legal sparring over the settlement Boeing entered into with the DOJ to resolve criminal allegations against the company, with families of crash victims arguing the government failed to comply with legally required consultations with them.

At trial, the Defense will have a real expert
 

Rather than summarizing what is a short and hard-hitting filing by the defense - here is the notice by Mr. Forkner's defense attorneys of their designation of an expert witness. As just an SLF (& att'y) I'm refraining from commenting on any specific credentials of this expert, though it won't (or shouldn't) offend any aviators to note that if this individual is not an expert for purposes of this trial, then there is no such thing as expert witness testimony.

"Pursuant to the Court’s Scheduling Order (ECF No. 12), Mr. Forkner hereby designates D. Lee Moak as a potential witness who may be construed as an expert under Federal Rules of Evidence 702, 703, and 705.

Lee Moak is a former U.S. Marine and U.S. Navy fighter pilot. With the U.S. Marine Corps (1977–1989), he flew the F-4 Phantom and F-18 Hornet and was progressively promoted through the ranks to Captain. With the U.S. Navy Reserve (1989–2001), he was promoted to Commander. While a pilot at Delta Airlines for 26 years (1988–2014), Mr. Moak flew the Boeing 727, 737, 757, and 767, and L1011. Additionally, he was the Master Executive Chairman of the Delta Master Executive Council (2005–2010) and President of the Air Line Pilots Association, International (2011–2014). Mr. Moak received his BA in Communication Arts from the University of West Florida in 1979.

After the tragic Boeing 737 MAX accidents, Mr. Moak was selected by the Secretary of the United States Department of Transportation to co-chair a special committee to review the Federal Aviation Administration’s aircraft certification process. That committee published a report on January 16, 2020, titled, “Official Report of the Special Committee to review the Federal Aviation Administration’s Aircraft Certification Process,” which is attached hereto as Exhibit 1.
We propose that Mr. Moak attend the trial and be prepared to rebut any testimony offered by other pilots who may testify. Beyond that:

Mr. Moak may testify about the training and responsibilities of a Boeing 737 pilot, including: how a trained pilot uses the equipment in the cockpit—such as the control column (or yoke), thrust levers, autopilot, autothrottles, main electric stabilizer trim, manual stabilizer trim, stabilizer trim wheel, and stabilizer trim cutout switches; that a trained pilot does not need to understand how an airplane is engineered in order to fly it safely; that MCAS is a code or software within the 737 MAX, designed to replicate the feel of the flight controls of the 737 NG in a certain regime of flight; that MCAS was designed to activate outside the normal operating envelope of a commercial flight; that a 737 pilot is trained to respond to appropriate and inappropriate stabilizer trim wheel movement and to not diagnose what is causing the movement; that a trained 737 pilot would not experience MCAS while flying the airplane in normal flight because a pilot who follows normal procedures would not place the airplane in or near a stall situation; and that even if a trained 737 pilot were to experience conditions wherein MCAS could activate, the airplane would be restored to normal flight either automatically or due to the trained pilot’s following proper procedures—such as the QRH/QRC.

Mr. Moak may also testify about the causes of the tragic Lion Air and Ethiopian Airlines accidents. fn1
fn-1 The government alleges that MCAS contributed to the crashes; that Mr. Forkner withheld information about MCAS from the FAA; and that the FAA would have found that information “material.” At the same time, the government does not contend that Mr. Forkner caused the crashes. Without more, that allegation will be confusing to the jury, and we offer Mr. Moak to put the crashes in greater context.

In the case of the Lion Air accident, Mr. Moak would explain that the airline installed a refurbished Angle-of-Attack sensor in the days leading up to the accident and failed to properly calibrate the sensor—such that the sensor transmitted inaccurate information to the airplane's flight control computer. This led MCAS to activate when it was not intended to. Mr. Moak would explain that Lion Air flight crews flying the airplane with the miscalibrated AOA sensor the day or days before the accident: experienced “uncommanded trim” due to the inaccurate information being fed by the miscalibrated AOA sensor; flew the airplane to the route’s destination; landed the airplane; and either failed to alert maintenance to fix the issue or alerted them but maintenance failed to fix the issue. Mr. Moak would explain that this failure violated acceptable, standard maintenance and flight operations procedures. Mr. Moak would also explain that the captain and first officer on Lion Air Flight 610 experienced “uncommanded trim” multiple times during that flight before crashing. But had the AOA sensor been installed correctly, or been fixed after an earlier flight, or had the crew of Flight 610 followed standard procedures in their manual on “uncommanded trim,” there would have been no crash. The standard procedure in their manual called for a response to “uncommanded trim” regardless of the cause of that trim. This is true in the Ethiopian Airlines crash as well.

Mr. Moak may also testify that U.S.-based airline carriers such as American Airlines, Southwest Airlines, and United Airlines did not experience any incidents involving runaway trim on the 737 MAX prior to the Lion Air and Ethiopian Airlines accidents, including any activation of MCAS during flight due to faulty installation of an AOA sensor. Mr. Moak would explain that a U.S.-based airline crew is trained to respond to “uncommanded trim” and would have been able to respond successfully to the conditions in the cockpits on the flights that crashed.

Mr. Moak may also testify about the FAA’s reaction to the Lion Air accident. Specifically, he would explain that after the Lion Air accident, the FAA did not require training on MCAS and instead issued an Airworthiness Directive restating prior QRH/QRC procedure for runaway stabilizer trim—that is to remind pilots to use the stabilizer cutout switches in the event of “uncommanded trim.” In other words, the Airworthiness Directive was a reminder to pilots to follow the training they had already been given. [fn 2 omitted-WR 6-3]

Mr. Moak’s testimony is based on his training; experience; and work as a pilot, pilot representative, and industry consultant in the aviation field for over 40 years. He is type-rated for the 737-NG, with 744 hours as a Captain. Additionally, Mr. Moak’s testimony is based on his work as co-chair of the Department of Transportation’s Special Committee, including flying the conditions experienced in the cockpits of the two aircrafts that crashed, in a MAX simulator."

Hmm. Mr. Moak appears to be defending an allegation that MCAS didn't cause the crashes, whereas I thought that the trial was about Mr. Forkner and him misleading regulators.
Confused

Mr Moak is certainly an expert witness, though I’m not sure what points the defense proposes to enlist his help with. The prosecution may also find this expert witness useful in providing useful testimony too. I wonder if the prosecution would depose him prior to the trial.

It would appear that the defense strategy is to shift the focus from Boeing misleading (or colluding with... ?) the FAA to diverge from established safe design and certification requirements (a crime even if the accidents would not have happened) to discussing the degree to which these actions have contributed to the accidents, which indeed is debatable. Aviation safety rests on two pillars: an inherently safe design, and training to be able to cope with the rare unsafe occurrences. The trial is (or should be) about the first, and hopefully will not be hijacked to be about the second.

You have to love the statement that US trained crews would have successfully resolved the malfunctioning MCAS, immediately diagnosed Runaway Trim and carried out the Memory Items. Mmmm. Despite the not so subtle implication of the superiority of US training, Boeing wilfully sold Max’s to Lion Air, Ethiopian and other 3rd world operators without adequate operational or engineering oversight. The stab trim through STS will move on its own under various FCOM described situations. At what stage do you interpret Runaway Stab? The 737 series, more than adequate in its evolution up to the -300 era should have been surpassed by a mini 787 fbw type. The continued ‘bits bolted on’ has got Boeing to this place with the 737. I agree that you can’t dump the quasi criminal lack of corporate oversight and regulation on one man. The blame goes all the way to the top.

The grandfathering creates the dilemma. Not the best technology but only the maximum level of new stuff permitted is installed to keep the old certification base. You end up with strange combinations of new and old features. Add forward mounted very powerful engines and this is what happens. The MAX will be okay now and integrated FBW aircraft will make future modifications much easier.

Beyond the truism that Mr. Forkner is guilty of no criminal act unless and until his guilt - both his actions and his mental state - are proven with admissible evidence beyond a reasonable doubt, I tend to believe he is not crimimally responsible (i.e., he has not committed a crime). Three items in support:

First, he may be guilty of monumentally ill-advised, even stupid, statements about his work, and certainly he did not stand in front of the (metaphoric) speeding locomotive of 737 MAX design, development and certification, holding up a "STOP" signal. Boeing's criminal case plea-bargain reeks of insider favoritism (though no one asked me). To prosecute Mr. Forkner as if a "lesser included" of the sordid, corrupt corporate malfeasnace is indeed a process of snagging a scapegoat. He acted badly, but that is not a crime, and not even in light of his specific role in the Boeing MAX debacle (itself a yet additional act of the multi-part drama, The Decline of the Once-Great).

Second, look again at fn.1 of the defense filing. The defense has argued that what Forkner did improperly relative to any and all contacts, communications and other interactions with FAA, singly and collectively, was not material to any decision (or failure to decide or act) by FAA. It's a significance argument. His mishandling of communications and information really did not make any difference, or not a material one.

Third, though closely related to the first point, Boeing is getting away with all this. Who in the legal profession or the aviation safety ecosystem - if such a thing exists any longer - is agitating for clawing back severance and other financial consideration received by Boeing's former CEO and General Counsel? Not that they should be prosecuted (though minds can differ, reasonably or not, on that point), but to walk away heavy with major warbucks??

Now that is an interesting turn of events.

I don't believe that the FAA acted with malice or otherwise, but I can state categorically that the issue of stability arising in the flight test was pretty much known by the govt, and it seems pretty mean spirited to hold to account Mr Forkner when te FAA was aware that a problem had arisen and had been fixed in the flight test. The FAA asserts that it had awareness of the MCAS as a stability matter in the pre-first flight high-speed wind-up case, but not later, yet, they were aware of a stability issue in the flight test phase of certification.

I think that chasing a pawn (Forkner) and letting the bosses literally get away with the deaths of 346 people due to their greed is unconscionable. I also think that the FAA staff are professional but have had poor "corporate" guidance and have been placed in an untenable position.

As an outsider I was aware of a stability issue that came up in testing, I had to play "who am I?" to work out what the issue was, and then to put in a white paper about whether the Max would behave the same with my own STC as all of the others in the line-up. It was not rocket science to work back and guess the issue that had cropped up, if I had been doing the PSCP, that would have been one of the more obvious issues to raise. In the end, our STC mod would not alter the outcome of the Max, and how Boeing had dealt with the stick force gradient was never disclosed to us, and nor should it have been. Pity.

I have suggested previously, that the Max longitudinal stability issue could have been mitigated by reducing the nacelle vane size, and any "economic" losses could have been more than compensated by TBC through some minor alteration of the TE of the flaps. The upside of doing the TE mod would be to reduce cruise drag, (ask Joe Sutter... ) and a slight shift rearwards of CP in the inner wing area, while shifting the spanwise lift distribution inboard, they happen to cancel each other out, and can be tuned to give eye-pleasing static stability at least. That mod would also improve the wing bending moment for the sluf design, which is getting pretty long in the fangs. The TE mod also happens to stabilize the loads on the flap tracks that the renditions of the 737 have always suffered from. Randolph's treatise on that little bit of design is good bedtime readin', while you are awaiting the gators to come up in the spotlights of the F-150 dual cab (dual cab as you can put more gun racks in there, cuz what's the fun of being outgunned by a hedgehog...., god bless the 2nd amendment, but 'scuze me, the term regulated militia seems to have slipped from the old parchment in it's readin'.) The Vs1g speed gets reduced, which is good for the clown in Chicago who apparently has a laser focus on shareholder value, and the most annoying thing about the B737 (not just my opinion, ask Pete K.C. Rudolph)#, reducing the approach speed to a manageable value would be nice and save some RESA rebuilding.

The corporate management of Boeing since 1997 at least gives ideas for what to do with goats other than curry and fetta cheese.

I doubt that Mr Forkner held his breath for 5 years in a vacuum, yet that is what the charges against him are apparently expecting the jury to believe.

I hope Boeing starts a greenfield single-aisle aircraft, one that has a round barrel, that takes LD-3's and uses CFRP rationally. Given the history, I would be placing my bet on Airbus instead.


# Rudolph, Peter K.C., High-Lift Systems on Commercial Subsonic Airliners, NASA Contractor Report 4746, Nasa Ames Research Center, Moffet Field, CA, Sept 1996 Contract A46374D(LAS)