Plaintiffs lawyers with expertise in airplane crash litigation predict that most of the lawsuits over the Asiana Airlines crash will name both the airline and The Boeing Co., which manufactured the aircraft. Although the first lawsuit was filed on July 15, most plaintiffs attorneys are investigating the roles that Boeing or other manufacturers of the plane and its components may have played in the crash. That's because, under an international treaty, most of the passengers aboard Asiana Airlines Flight 214 could be barred from suing the South Korean airline in U.S. courts.
But all passengers, regardless of their nationalities, could bring claims in U.S. courts against Boeing, based in Chicago, or any number of unnamed U.S. subcontractors that had a hand in the plane's manufacture.
"We're spending a lot of time studying the potential claims against Boeing," said James Kreindler, senior partner at New York's Kreindler & Kreindler, a leading plaintiffs' firm in airplane crash litigation. "The liability claims are different, but the damages suffered by each family or passenger are the same."
The July 6 crash, which occurred as the Boeing 777 attempted to land at San Francisco International Airport, killed three and injured about 180 people. The cause is still under investigation, but initial findings by the U.S. National Transportation Safety Board indicated that the plane was coming in too slowly and crashed after clipping a sea wall.
Federal law prohibits law firms from soliciting clients within 45 days of an airplane crash. But that doesn't mean victims of the crash haven't reached out to attorneys. "They made the phone call to me — I didn't go to them," said Michael Verna of Bowles & Verna in Walnut Creek, Calif., who filed the first suit against Asiana Airlines Inc.
The suit, which seeks $5 million in damages, was brought on behalf of Younga Jun Machorro, a Korean citizen with U.S. residency, and her 8-year-old son, Benjamin Hyo-Ik Machorro, a U.S. citizen. Joining the suit is Hector Machorro, Benjamin Hyo-Ik Machorro's father and the husband of Younga Jun Machorro, who was not on the plane but claims the loss of "comfort and consortium of his wife," the suit says.
The case was brought under the 1999 Montreal Convention, which dictates where passengers of an international flight can file suit. All U.S. citizens can file suit against a foreign airline in U.S. courts, but passengers from foreign countries don't automatically have that same right. The venue is important because U.S. courts offer significantly higher damages awards than do overseas jurisdictions.
According to Asiana, 291 passengers were aboard the plane: 141 Chinese, 77 Koreans, 64 from the United States, three each from India and Canada and one each from France, Japan and Vietnam.
Under the convention, Asiana would be liable to anyone injured for damages at levels established by the International Monetary Fund. Those payments would be covered by the airline's insurance carrier — in this case, American International Group Inc., according to the lawyers involved. If anyone claims more than that, Asiana has the burden of proving it was not negligent.
"There's absolute liability of up to $168,000 and beyond that the airline is liable unless it can show someone else is solely at fault, which it can't," said Kreindler, whose firm represents four passengers. "Asiana is on the hook."
Asiana, he said, has retained New York's Condon & Forsyth, a leading airline defense firm. Desmond Barry, a partner at Condon & Forsyth, did not return a call for comment. Asiana did not respond to a request for comment.
Boeing could also be on the hook, depending on whether the crash turns out to have been caused by defects with the aircraft. Robert Clifford, a partner at Chicago's Clifford Law Offices, representing five passengers, said there was a "strong argument" that the plane should have been equipped with a system to warn the pilots visually and audibly about the dropping air speed. The National Transportation Safety Board, he said, has been urging the Federal Aviation Admin­istration to require such alerts for years. The venue for any litigation is unsettled. In most cases, airline crash mass torts have been coordinated in federal courts by the U.S. Judicial Panel on Multidistrict Litigation. Yet lawyers could turn to state courts. A lawyer in Chicago, for instance, used a unique Illinois law to force Boeing to turn over the names of other companies that could be liable for the crash.
Monica Kelly, of counsel to Ribbeck Law Chartered International, which filed the petition on July 15 in Cook County, Ill., Circuit Court for 30 passengers, plans to use the information to bring a lawsuit — possibly in less than a month. "This petition allows us to ask the judge to order Boeing to identify the different component part manufacturers of the plane," she said. "This is the beginning of litigation in Illinois. It is the only state in the country that allows us to do that."
Amanda Bronstad can be contacted at email@example.com.