Families of three British citizens who died in 2019, in the second of two Boeing 737 Max airliner crashes were victims of gross negligence manslaughter. In a ruling earlier this week in England, Senior Coroner Penelope Schofield called the deaths of the three humanitarian workers on Ethiopian Airlines Flight 302, an “illegal killing.” It is an awkward term to be sure but appropriate for a victory that is similarly conflicted.
“Every time family members try to bring Boeing to task, they meet a brick wall,” said Richard Baker, the barrister in England who represented the families.
To come to her conclusion, Ms. Schofield relied on many public documents including a deeply-flawed plea deal Boeing made with Federal prosecutors in Texas in early 2021. The company would avoid a criminal trial for its role in the disasters but would admit that two of its employees lied to the FAA. Boeing’s lawyers also convinced prosecutors that fraud related to the Max was not pervasive or “facilitated by senior management.”
While the Justice Department depicts the deferred prosecution agreement as a justice for families, it is most definitely a get-out-of-jail-if-not-for-free card for Boeing, a global economic powerhouse and a major defense contractor.
Still, the document has colored much of what the public knows about the 737 Max scandal, including, now, the Senior Coroner.
“It was the deception by Boeing’s employees,” that allowed a lower level of pilot training for the 737 Max, Ms. Schofield explained.
Neither Mr. Baker nor his clients believe that to be the whole story. But the law governing inquests restricted the coroner to consider only the actions of individuals identified by other authorities. And Baker and his clients are taking a win where they can find one.
“Even if it is a victory that doesn’t reflect the scope of the wrongdoing, it is still a victory,” he told me. “It is somebody saying their loved ones were unlawfully killed. That’s an important thing to hear while you’re banging your head against a brick wall.”
Everyone paying attention to the Max scandal has heard the story of the two pilots outed by Boeing and the salty text messages they exchanged expressing their frustration with Boeing and the FAA.
Far fewer know that when Mark Forkner, the sender of most of those texts and the only one indicted for the alleged deception of the FAA, was tried, he was acquitted. As in, found not guilty. In three hours. He did not even need to take the stand to defend himself. That is how weak the government’s case was.
The jury may have been guided to that swift justice by evidence that showed using computers rather than simulators to train pilots on the Max was a priority from the vice president and general manager of the 737 Max program, a man far up the power chain at Boeing from where Forkner sat. And B-level training was a “program objective” before Forkner went to work at the company.
As for the FAA’s claim that it did not know the true nature of MCAS, documents at the trial showed before the first Max was delivered, the representative directly responsible for deciding how pilots should and should not be trained, the FAA’s Stacey Klein was a required attendee at four meetings where details of the expanded MCAS system were presented.
Had the trial transcript been on the reading list of the coroner, she might have started to wonder, as the rest of the world surely ought, how a company bringing a multi-billion dollar product to market leaves life and death decisions in the hands of mid-level pilots. And the answer is, it does not.
The senior coroner cited many factors that were critical contributors to the Max disasters, the majority of which have nothing to do with what the FAA knew about MCAS and a lot to with Boeing.
The company, she said,
Failed to recognize the scope of its MCAS system
Failed to understand how pilots would respond to it
Failed to recognize the role of MCAS after the first crash
Failed to recognize the cockpit chaos unleashed by an unintended MCAS activation
Failed to create a redundancy in the angle of attack indicator which would have prevented the triggering of MCAS
These played a role in the deaths of Joanna Toole, 36, Samuel Pegram, 25, and 45-year-old Oliver Vick. (A fourth British resident Abdi Qasim was repatriated to Somalia so while Ms. Schofield mentioned him in her comments, the inquest did not officially include him.)
Joanna Toole
I take nothing away from the coroner’s finding that the conduct of Boeing was “truly exceptionally bad” or her surmising that the loss of the 737 Max victims was “Felt around the world.” But as long as the scope of the Max disasters is defined and confined to the actions of a couple of pilots, the fraud at Boeing continues.
To hear Ms. Schofield’s summary of the cast, play the audio file here.
Author of The New York Times bestseller, The Crash Detectives, I am also a journalist, public speaker and broadcaster specializing in aviation and travel.
Boeing’s engineering test pilots and flight test engineers are the ones who know the full story. They have been remarkably quiet.
The US is usually the country best known for successful lawsuits. What is the state of claims being made by the families in US courts?
(When I heard that Ralph Nader’s niece had been aboard ET302 it occurred to me this must be very bad news for Boeing. Was it?)