Since 2019, None Of The Tort Cases From Boeing 737MAX Crash In Ethiopia Have Gone To Trial By Jury: Why? – OpEd

For the citizenry to understand the prolonged status of the civil litigation brought by the families of the 156 people killed in Boeing’s 737MAX airplane crash in Ethiopia on March 10, 2019, we are attaching the following letter to the presiding Federal Judge Jorge L. Alonso. Under his management, there has still not been a single trial by jury in any of the cases.

January 24, 2024

Judge Jorge L. Alonso
U.S. District Court
Northern District of Illinois
219 South Dearborn Street
Chicago, IL 60604

Dear Judge Alonso:

Over the months, reporters have called to inquire about the status of the mass tort litigation by the families against the Boeing Corporation and its leadership regarding the 737MAX crash in Ethiopia on March 10, 2019, killing all 156 passengers and crew. Included among the victims of that corporate crime was Mr. Nader’s grandniece, 24-year-old Samya Rose Stumo, an emerging precocious leader in global health.

We thought you may be interested in our response. A Stipulation was agreed to by most Plaintiffs and defense counsel where Boeing conceded liability strictly limited to these filed cases. Plaintiffs, in return, conceded to withdraw any further discovery, agreed not to plead punitive damages, to restrict any trial to compensatory damages only, followed a mediation process, and concurred with a curtain of indefinite secrecy around the entire proceedings.

There was probably more to the Stipulation and additional amendments, but that was the essence. The Plaintiffs’ attorneys proceeded to “persuade” their clients, domestic and foreign to sign up, with a few families resisting and wanting to go to trial following a robust discovery with depositions of top Boeing officials.

This Stipulation ended an arms-length adversarial process which placed Judge Alonso’s role in a more controlling position. He has chosen to do everything possible to avoid trials and juries by pressing the resolution of cases at the mediation level and refusing to provide solid trial dates for the families who want to exercise their right to their day in court and a [jury] trial.

The reporters were aware that over four years have passed with no significant discovery and depositions. No trial has been scheduled for any of the over 120 unresolved cases. Further, there is no end to the “justice delayed is justice denied” for the families who want no part of a secret mediation process, notwithstanding [being] pressed by counsel on both sides. They want an open trial with cross-examined testimony and production of documents to fully reflect the enormity of this avoidable corporate crime against their loved ones.

The devolution of the mass tort litigation phenomenon has been undergoing increasing criticisms by some scholars and practitioners alike who decry the coercion, collusion and secrecy as antithetical to the multiple purposes of tort law: namely adequate compensation, fullest possible public disclosure and deterrence.

We mentioned that reaching these goals was being impeded or obstructed as events have unfolded to create undue delay by the defense and the coerced pressure on the Plaintiffs’ attorneys to accede to an emerging reality that judicial activism is managing this tormented contest instead of an open adversarial process.

As outsiders, we are not privy to many internal exchanges between Boeing’s attorneys, the lawyers for the families and the Court. They are, no doubt, intense but at some time, will be matched with the professional and judicial codes of ethics.

As in all such serious judicial proceedings, the public retains the ultimate right to know. Nixon v. Warner Communications, Inc., 435 U.S. 598 (1978). As Justice Louis Brandeis instructed, “Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.” British sage Jeremy Bentham observed that open justice is the cornerstone of justice itself:

“Without publicity, all other checks are insufficient: in comparison of publicity, all other checks are of small account. Recordation, appeal, whatever other institutions might present themselves in the character of checks, would be found to operate rather as cloaks than checks; as cloaks in reality, as checks only in appearance.”

The civil justice system has become an alternative to seeking justice when the enforcers of the criminal law succumb to political and other considerations and allow deferred prosecution agreements. These deals amount to an insurable, deductible cost of doing bad corporate business while offering culpable officials immunity. We noted that all Parties are quite aware of the Justice Department’s agreement with Boeing that set up this sweetheart deal spanning the two administrations of Presidents Trump and Biden and the countering litigation by the families under the Victims Representation Act. This escape from accountability is reaping its bitter fruit with the same commercial culture controlling engineering integrity in this month’s near disaster by an afflicted 737MAX 9 aircraft over Portland, Oregon. This harrowing event has led to expanded FAA and NTSB investigations.

We observed that whether Boeing and its assemblage of corporate attorneys succeed in nullifying the accountabilities growing from the three functions of the law of tort [responsibility] rests at the outset on Judge Alonso’s handling of these cases. So far, the pivotal judicial rulings have often not been conducive to letting those Plaintiffs, who have wished to proceed with comprehensive discovery and open trial by jury, to do so.

Reporters know they cannot do their job for the public’s right to know under these conditions. However, we say to them—keep trying. Sooner or later, the closed doors to mass tort litigation against other companies have been opened. The findings have not been complimentary to many of the culpable interested parties.

Thank you for contemplating the above narrative.

Sincerely,
Ralph Nader, Esq.
Bruce Fein, Esq.