The Rights of Victim’s Families of Flight 302

Apr 13 , 2019
By Shakespear N. Feyissa

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The families of the victims of Ethiopian Airlines Flight 302 should be able to take their case to a court in the United States rather than settle early, which is what Boeing would prefer. This may not only mean better compensation but insurance that no such future accidents occur, writes Shakespear N. Feyissa (shakespear@shakespearlaw.com), an attorney and counsellor at law based in Seattle and currently working with Friedman Rubin and other law firms in the US seeking to represent families of Flight 302 victims.

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There are already misunderstandings surrounding the unfortunate crash of Ethiopian Airlines Flight 302 on March 10, 2019. The case is unfolding in a way that risks harming the very people who are most hurting now - the victim’s families.

There is confusion over why Boeing’s CEO, Dennis Muilenburg, seemed to have come out and admitted responsibility for the crash.

“It’s our responsibility to eliminate this risk. We own it and we know how to do it,” reads the statement, admitting an issue with the Maneuvering Characteristics Augmentation System, aka MCAS.

Boeing may be admitting fault with its system to try to limit its liability and reduce the amount that will ultimately be paid to the victims' families. The next step may be an offer from Boeing to pay the families money through a compensation fund or early settlements.

The US judicial system allows for punitive damages, which punish corporations whose conduct is willful and negligent. Punitive damages are designed to deter similar conduct in the future. If Boeing can settle its cases early, it will avoid these punishing damages. It will also avoid discovery of action by Boeing and the Federal Aviation Administration, the United States’ civil aviation regulatory body, documents and testimony that will tell the story of how this aircraft was pushed through certification. There is a lot to be learned from that story.

Early compensation is a terrible idea for families. This case is far too important to allow Boeing to simply write checks and fly back home. If that happens, Boeing will not learn a lesson, and the public will not learn how to prevent these crashes in the future.

Boeing is rich and can afford these payouts as the cost of doing business. If they can get the families to settle they will not be deterred from acting like this in the future. If Boeing rushed the 737 Max 8 model to the market to compete with its chief competitor, Airbus, we need to understand how they did that, so we can stop the practice next time.

But we will never know the story behind the certification of the Max 8 if passengers roll over and settle. Truth and justice will keep this from happening to other families in the future. We need to see the documents that tell the story of the sensor, backup system and what went on between Boeing executives and FAA officials. This is necessary to prevent similar crashes, not just with Boeing but other manufacturers as well. An early settlement does not advance this learning - it just advances Boeing.

Boeing is a major corporation that made over 100 billion dollars last year. This number is significant because if a jury considers punitive damages, it will take into account Boeing’s financial earnings. In determining what amount should be awarded to a family from a corporation as punitive damages a court will consider what amount of money is necessary to punish the defendant and discourage the corporation from future wrongful conduct in light of defendants' financial conditions. In other words, if a company like Boeing earns that much a year, punitive damages would be large to teach them a lesson.

As member of a team of attorneys who represents plane crash victims, I know that after a plane crash, there are many unanswered questions. Losing a loved one in a plane crash is particularly troubling because it is sudden and unexpected. There is no opportunity to say goodbye and sometimes there is nobody to bury. The emotional cost to the victim’s family is very high.

No one would ever trade a family member for money. It is beyond human comprehension. There is much guilt and confusion after a plane crash because family members are placed in a position where they have to make decisions about how to move forward. Families want to find meaning in the death of their loved one.

Part of that meaning can be in safety advancements, bringing a lawsuit to prevent similar harms in the future. A lawsuit against an aircraft manufacturer can bring about safety changes, which can save lives.

It is not uncommon for families of a flight to find solace in each other and to begin to make decisions together. Often, there is power in numbers and the other family members can understand and trust each other and seek comfort together. The families may want to form a committee or foundation to gather each year to remember their loved ones or to create memorials. That same committee has political power and can sometimes work to bring about a change in the law.

There is value in a committee, but a committee need not choose just one lawyer or one law firm. The families are not splitting the compensation. They are each entitled to their own compensation and it will differ from family to family. Having multiple lawyers or law firms representing them is the best idea. It allows the lawyers to work together - there is strength in numbers there too.

Just because Boeing is admitting responsibility, it does not mean that it will change. It is a financial decision motivated by concern for how much money Boeing is losing because of the crashes and the problems of selling its airplanes. The families of ET 302 do not need to participate in an early settlement or compensation fund, if one is offered.

The courts of the United States are open for Ethiopians because of Ethiopia Amity & Economic Relations Agreement Treaty, which provides that nationals and companies of Ethiopia shall have free access to the courts of justice in the US so “that prompt and impartial justice be done.”

This treaty provides a right to the citizens of Ethiopia, to everyone hurt by Flight 302, to sue on behalf of their loved ones in the US.

The United States judicial system is unique. It is a system that puts ordinary citizens, moms and dads and passengers on flights, in the position of the jury to decide on the case. The system is also different than in other countries, because it allows lawyers to ask questions that corporations like Boeing must answer truthfully and fully.

The families of Flight 302 have a right to access the US judicial system. They have the right to seek justice where Boeing is based. With experienced lawyers, they may be in a position to ask a jury for punitive damages, which deter bad conduct and prevent corporations from risking the lives of innocents. Consequently, families will forever honour the lives of their loved ones.

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PUBLISHED ON Apr 13,2019 [ VOL 20 , NO 989]

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