Boeing’s lawyers filed a joint court motion Wednesday with the lawyers for the families of the 157 people who died in the 737 MAX crash in Ethiopia, accepting sole liability for the fatal accident and laying out a process to settle almost all the claims.
“The defendant, Boeing, has admitted that it produced an airplane that had an unsafe condition that was a proximate cause of Plaintiff’s compensatory damages caused by the Ethiopian Airlines Flight 302 accident,” the filing states.
Boeing explicitly agreed that the pilots were not at fault.
It also exonerated two MAX suppliers: the company that built the jet’s angle of attack sensor and the one that produced, to Boeing’s specification, the aircraft’s faulty flight control software.
The motion includes what’s called a stipulation — a binding agreement on the settlement process — that was signed by all but two of the families.
As reported Tuesday by The Seattle Times, the stipulation means compensatory damages for each individual claim will be decided either in mediation or in court in Illinois, where Boeing is headquartered. Boeing agrees not to try to force overseas families, many of them in Africa, to seek damages in their home countries, where damages would be far lower.
In a statement Wednesday, Boeing said the agreement “allows the parties to focus their efforts on determining the appropriate compensation for each family.”
“Boeing is committed to ensuring that all families who lost loved ones in the accidents are fully and fairly compensated for their loss,” the statement adds.
What Boeing gets from the agreement is an explicit exclusion of any claim for punitive damages and an end to legal discovery processes or depositions that would seek further evidence of wrongdoing by Boeing.
“The jury shall not hear evidence on issues of liability,” the stipulation states. “The parties further agree that no evidence or argument about punitive damages will properly be the subject of discovery or be admitted.”
Ralph Nader, the longtime consumer advocate known for using tort law to hold corporations to account, called it “a strange settlement without Boeing having to guarantee any dollars whatsoever.”
Samya Rose Stumo, 24, the daughter of Nader’s niece, died in the ET 302 crash, and her family is one of the two that have not signed the stipulation.
In a statement, Nader noted that the compensatory damages will be paid by Boeing’s insurers. He sharply criticized the lack of potential punitive damages, which would have to be paid by Boeing, and the abandonment of legal discovery and depositions of top executives.
“The great American tort law system, assuring individual justice against wrongdoers, has been reduced to a collective slap on Boeing’s wing,” Nader said.
Boeing’s acceptance of liability is the closest it has come to a full admission of blame for the two deadly MAX crashes that killed 346 people: Lion Air Flight JT 610 in Indonesia in 2018, followed just over four months later by the crash in Ethiopia.
However, it still falls short of telling the world exactly what went wrong in the design and certification of the MAX, how it happened and who was responsible.
What caused both MAX crashes was the faulty activation of new flight control software on the jet — the Maneuvering Characteristics Augmentation System, or MCAS — that forced both planes into a nose dive.
MCAS was designed with a single point of failure. It was designed so that it activated repeatedly rather than one time when that single failure happened. And it was designed to push the nose down with such power that the pilot couldn’t sufficiently counter it by pulling on the control column alone.
Boeing fixed all these design flaws in the software update that has allowed the MAX to return to service.
Yet the company has never publicly accepted that the MCAS design was deeply flawed as certified, except to say that its design and testing should have taken more account of typical pilot skills and pilot reaction time — a formulation that pointed some blame at the pilots.
However, the court motion Wednesday walks back public statements in 2019 by then-CEO Dennis Muilenburg, and private suggestions by Boeing officials to U.S. pilot groups, that the Ethiopian Airlines crew shared some blame for the crash.
Boeing states in the filing that it does “not ascribe fault to the Pilot (Captain), Co-Pilot (First Officer) or seek contributory or comparative negligence against them.”
Boeing’s statement that it is solely liable — “Boeing does not blame nor allege that any other person or entity was responsible” — also means two of its suppliers named in the original complaint are let free of any liability.
All claims against Rosemount Aerospace, a unit of Rockwell Collins, which designed and built the MAX’s angle of attack sensor, and parent company Rockwell Collins, which supplied the MCAS software, “are hereby dismissed with prejudice and without costs,” the stipulation states.
Data from the Ethiopian Airlines Flight 302 black box suggests the angle of attack sensor that failed and triggered an activation of MCAS was instantaneously knocked out just as the plane left the ground, possibly by a bird strike.
And though it was the activation of MCAS that brought the plane down six minutes later, the flaws in the design of the software were Boeing’s. The manufacturer has admitted that Rockwell Collins produced the software to the specification Boeing had requested.
The financial compensation that each family will receive is still to be worked out in lengthy proceedings that will consider the lives of those lost and each family’s circumstances.
The agreement states the families are entitled to “the full measure of damages permitted under Illinois law.”
The damages are to be weighed in the same terms for every family “regardless of the citizenship, residency, domicile or nationality of any Plaintiff or decedent.”
This will include consideration of “loss of economic support; loss of services; loss of society; grief, sorrow and mental suffering of the decedent’s next of kin; loss of consortium; loss of instruction, moral training, and superintendence; burial expenses; pain and suffering and emotional distress of the decedent.”
The agreement states that the lawyers for the families will be permitted to use legal discovery to access material such as the data from the flight recorders. That will allow them to create an animation showing what the passengers experienced during the six minutes of the flight to illustrate the terror and suffering of those who died.
The final financial cost to Boeing won’t be decided for many months. However, the boundaries that the agreement puts on the claims remove an overhang of uncertainty on the company.
With the possibility of further revelations of wrongdoing in court proceedings now remote, Boeing’s leaders can leave it to lawyers to work out the precise compensation amounts while they move on.