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Filing over missing Malaysia Airlines flight called premature as search for plane continues

Aviation law attorneys concerned about early filings

Ronald Goldman, head of Baum, Hedlund, Aristei & Goldman’s aviation disaster practice group

Several veteran aviation attorneys are outraged that one Chicago law firm has gone ahead with a filing in response to the missing Malaysia Airlines plane even though the whereabouts of the Boeing 777 remains a mystery. 

For instance, Chicago attorney Robert Clifford, who has frequently sued airlines after crashes, said the filing was “grossly premature and without foundation.”

“It’s a disservice to the families who are in agony and angst,” he added.

“It’s premature,” echoed Ronald Goldman, a Los Angeles-based attorney who is a pilot and head of Baum, Hedlund, Aristei & Goldman’s aviation disaster practice group. In the short run, it likely will not be productive, Goldman adds.

“Right now, with the information we have it may be premature to initiate any legal action,” added Michael Dworkin, an aviation attorney based in San Francisco, who used to be an attorney for both United Airlines and the Federal Aviation Administration. “I’m sure there will be lawsuits. That’s a given. But first [we] have to find out what the heck happened … They haven’t found the wreckage.” 

The petition for discovery – which initiates a lawsuit – was filed by Ribbeck Law of Chicago against Boeing Co, manufacturer of the aircraft, which is based in Chicago, and Malaysia Airlines. 

Representing the relative of a passenger on the missing Flight 370, the law firm has asked that Malaysia Airlines and Boeing turn over documents related to possible "negligence,” news reports said.

“The lawsuit, soon to be filed, would seek millions of dollars of compensation for each passenger and ask Boeing to repair its entire 777 fleet,” according to a report from Reuters. The report added that the law firm claims it “expects to represent families of more than half of the passengers on board” the flight.

But Clifford described the move as a “publicity stunt” and noted that the same group of lawyers filed a similar petition following the Asiana plane crash in San Francisco. That petition was tossed out of court last year.

Clifford is not protesting the law firm’s actions because of a devotion to the airline business; quite the contrary. “I sue Boeing all the time,” Clifford said. “I’m not out there being a cheerleader for Boeing.” In fact, Clifford confirmed he has “been called” by another attorney to work as a possible co-counsel on the Malaysian plane incident. The other attorney represents someone who could possibly bring a case.

Meanwhile, Clifford’s advice to any possible plaintiff in the likely Malaysian crash is to “keep their powder dry.”

“I would keep their options open,” Goldman agreed, when asked what he would tell a possible client in the case.

As of now, defense or potential plaintiff lawyers want to gather as much information as possible, the veteran attorneys said. That includes details about the cargo on the plane and about the crew and their training. Defense counsel may also take special interest in the manifest listing the passengers. 

Attorneys are hopeful that the black box will be recovered and will include the all-important flight data. They recall it took two years to find the black box after the Air France crash. 

It is also noteworthy that the Malaysia Airlines flight is covered by a no-fault provision in the Montreal Convention. That means if it can be proven that there was an accident and a life was lost, $175,000 would be given to a passenger’s relatives. Not everyone would reject the lower amounts – despite the potential for more from a lawsuit. Goldman says there are some people who want closure and will take the $175,000.  But lawyers speculate these kinds of suits typically seek seven-figure amounts for each death. 

At this point, even though the plane has not been seen, there is a strong inference the plane crashed and lives were lost. “It’s very difficult to speculate the airplane is hidden on a strip in a jungle someplace,” Goldman said. To those who theorize it landed somewhere, Goldman comments, “It’s really hard to hide that thing. It’s a big airplane.”

On the other hand, if death cannot be proven, there is a legal option of presumption of death which Goldman says takes five years before it becomes effective under, for example,  California law.

The lawyers also said that if litigation does occur, most likely it would not take the form of a class action lawsuit. Aviation disaster lawsuits tend to be individual cases. It is also not likely that a special master would be appointed to settle lawsuits, as was the case in the Sept. 11 attacks. In that case, the number of victims was much higher. 

When it comes to common grounds for air crash lawsuits, they often relate to questions of pilot/crew error, inadequate training of pilots or crew, possible system failure on the aircraft, defect in the airplane, and whether a catastrophic event took place.

It is also possible that lawyers in this likely crash will review how the lithium batteries on the plane were packaged. More generally, other issues could relate to what did or did not the airlines do; what they could have done with technology to find the plane; and the level of transparency on the part of the airlines. The wreckage needs to be recovered, documented and preserved, as well.

In addition, it is possible that some litigation could be filed in U.S. courts. The amount recovered, if a suit were successful, would likely be more if a case were filed in the United States than in Malaysia, some attorneys speculate.

The crash has also bought up the National Transportation Safety Board’s (NTSB) 45-day rule about lawyers not contacting the families of passengers. Some argue it does not apply outside of the continental United States. But already there is speculation there are attorneys recruiting clients overseas. 

Violating the rule has consequences. In 2013, the NTSB reported Ribbeck Law Chartered to the Illinois agency that regulates attorneys for “further investigation of its online communications and in-person meetings with passengers,” according to a report from The Associated Press.

As for now, looking at what has occurred with the missing Malaysian plane – shows that the circumstances are very unique. It relates to a well-regarded plane and established airlines, and the plane remains missing despite a huge search effort. “This one is totally outside the box for everybody,” Dworkin said. 

“We’re still involved in the phase of the case they call a mystery,” Goldman agreed. The missing flight has led to a never-ending series of theories and speculation over what happened to the plane – while passengers’ families await the outcome. 

“Everyone, lawyers included, [should] not leap to any conclusion not grounded in reasonable facts,” Goldman said. “Wild speculation doesn’t serve the public interest…. It’s a terrible tragedy.”

 

Further reading:

Asiana Airlines to pay $10,000 to San Francisco crash survivors

Asiana may try to avoid suits in U.S.

 

Contributing Author

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Ed Silverstein

Ed Silverstein is a veteran writer and editor for magazines, websites and newspapers. A graduate of Harvard's Kennedy School of Government, he has won several...

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