Why is one of the deadliest crashes in aviation history yet to be resolved after 15 years?

PRESS ANNOUNCEMENT

Why is one of the deadliest crashes in aviation history yet to be resolved after 15 years?

THE SAGA OF SPANAIR FLIGHT 5022

ADDITIONAL OVERVIEWS, REPORTS, AND MATERIALS AVAILABLE UPON REQUEST

12/14/2023 – Courts in Spain are finally allowing a trial to move forward next month on Spanair flight JK5022 which crashed on takeoff, killing 154 passengers, with a miraculous handful of survivors. After 15 years of stalling and stonewalling by Boeing with multiple appeals and other interruptions, both sides are at last preparing for the courtroom showdown in January of 2024. The grueling delays outlasted many of the plaintiffs willingness to continue the battle, with the families of less than a dozen passengers aboard the ill-fated flight left to stand trial. The Texas-anchored law firm Brent Coon & Associates pressed on with most of their clients to make sure that they would eventually receive the justice they deserved and be able to tell the full story of why this happened in the first place and how easy it would have been for Boeing to have added an inexpensive safety feature to the electronics on the jet to avoid takeoff when the wing flaps are not in the correct configuration.

On the 20th of August 2008, a Spanish airliner taking off from Madrid stalled and crashed just moments after liftoff, careening off the runway and exploding in flames as hundreds looked on in horror. By the time firefighters reached the crash site beside runway 36L, the plane lay ruined and burning, surrounded by the charred remains of 154 passengers and crew, who just moments earlier had been bound for the sunny beaches of the Canary Islands. Amid the wreckage, rescuers managed to find just 18 survivors, all badly injured, who had been spared by the flames.

A crane raises the only intact section of Spanair flight 5022 out of a crack at Madrid Barajas Airport. (AP)

At first, no one could say why Spanair flight 5022 was unable to climb, but the truth was soon revealed in the wreckage itself. Somehow, the pilots had sent their plane hurtling down the runway without extending the flaps and slats for takeoff, then failed to detect their error in time to avoid a catastrophic crash. It was the same mistake which had caused tragedy after tragedy, from America to Indonesia, and now it had happened again in the heart of Spain’s capital city.  And just as in accidents past, a crucial alarm that should have warned of the danger failed to sound. How could it have happened again? Had the lessons of the past gone unheeded? A comprehensive investigation would eventually reveal how regulatory failures prevented detection of the faulty warning, and how a series of delays, interruptions, and stressors, when mixed with poor procedural design, led a normally competent crew to attempt a takeoff without performing one of the most basic steps to prepare their airplane for flight. Moreover, and even worse, was the fact that Boeing had a fix for this situation that would have prevented the airplane from taking off in the first place but had decided not to install it, or advise owners of the airplanes to have it installed as an easy and inexpensive retrofit.

In analyzing the basic sequence of events that led to the crash, the federal investigative agency, the CIAIAC, noted pilot error due to a combination of psychological stress from pressure to take off in a timely manner and a poorly implemented checklist system. And the international press predominantly ran with this simple narrative of “pilot error”. But was that the end of the story…. hardly.

So how could well-trained professional pilots in one of the largest passenger airplanes made take off with the flaps in the wrong position in the first place? A deeper investigation, led by a team of international aviation law firms and world-renowned experts in the field, uncovered a technical flaw in the takeoff warning system (called a TOWS system). And McDonnell Douglas, the original manufacturer of the plane was aware of the problem as far back as 1993. Moreover, neither McDonnell Douglass nor Boeing (who purchased McDonnell Douglass in 1997) had done anything to correct the issue, in spite of the fact that this was NOT the first time this had occurred and led to tragic results.  Boeing has shown a history of ignoring or “hiding” reports of faulty equipment and poor design, which has led to multiple investigations into Boeing’s corporate culture. Most recently the attention has been on the infamously dangerous design and engineering problems with the Boeing flagship 737.

A simple retrofit to the cockpit software would have prevented a takeoff in this sequence. So why had that not been done? Investigation into the matter uncovered the fact that it HAD been done, but only on a very select few airplanes, which unfortunately didn’t include this one, nor most of the similarly designed airplanes under the Boeing banner flying all over the world. So as the entire industry started building these safety features with basic overrides into the cockpit dash, very rarely was it retrofitted to planes already sold.

Unfortunately for the hundreds of grieving family members, the airline flying the plane, Spanair, declared bankruptcy amid the onslaught of lawsuits and only left pennies on the dollar to offset the losses to the families of those poor souls. Suit was brought against Boeing in the United States, where the airplane was manufactured, and after a year of aggressive efforts to ward off the lawsuits, Boeing succeeded in getting the lawsuits moved back to Spain. Over a decade later, the cases still languish. Many victims and their families gave up. But now, after a decade of dilatory practices in Boeing’s efforts to get the cases dismissed through a litany of appeals, the case is finally set for trial next January and the story of what really happened, and most importantly, WHY it happened, may finally be told.

Even facing an eminent trial, Boeing remains entrenched, arguing that they had no duty to fix the airplane, that the bankruptcy case essentially absolves their liability, and that Spain’s notorious “cap” on certain types of legal damages all but eliminates any claim for compensation. Only the judgment of the trial court next year will finally determine if Boeing can prevail on any of their many defenses.

Brent Coon, whose firm undertook representation early on in the initial lawsuit in California, expressed his frustration and renewed optimism. “We have been fighting the good fight for these victims and their families for well over a decade. It has been extraordinarily frustrating to see Boeing spit the hook on being held accountable for so long, and to succeed in convincing our own judiciary that the victims would get a swift and fair trial in Spain. They knew that wasn’t going to be the case, and showed their true colors once they obtained the rulings throwing everything back into the laps of the Spanish courts, which rarely deal with this type of complex litigation. We weren’t surprised to see them undertake multiple protracted appeals of the trial court rulings to further delay the matter and wear down these families, who were already devastated by the loss of their loved ones and impatient to ride out appeal after appeal. But we have weathered all the storms and look forward to finally being able to bring the experts to the forefront who know what was wrong with the airplane, and knew what had happened in the past to fix a few others ones but not this one. Spanish government oversight of the airline industry is frankly pretty weak or this would not have been allowed to happen in the first place,” says Mr. Coon.

Claimants have requested that the court apply U.S. law as to liability and damages, taking into consideration that the defective product was designed and manufactured in the United States, considering further the “cause and effect” standard establishing the relationship between the crash itself, and why the crash occurred – tying it back to the actual manufacture of the defective aircraft. There is still no formal ruling from the court on which law will be applied at trial. The outcome of the entire case may well hinge on those issues alone, sweeping the reasons why this occurred in the first place back under the rug.

Fernando Hernandez Guedes, one of the plaintiffs in this litigation, expressed his frustration. “There were 3 huge tragedies here. First, losing my family in this horrible crash. Then, finding out it could have all been avoided and prevented with a simple maintenance fix to the plane, and that Boeing knew about this for years and chose not to do it. And finally, the 15 years of legal charades, perpetrated by Boeing to prolong the agony and prevent us from getting justice and closure. I am astonished that a company such as Boeing could be that greedy, heartless, and cruel.”

“We are optimistic from prior trial court rulings related to the qualification of experts, and the subject matter of their testimony, that the court is likely to apply U.S. legal standards to a number of the legal issues involved in the case. While we will certainly respect any decisions made by the court in this matter, ruling one way versus the other in a case like this has a tremendous impact on the final outcome, and these victims will finally be fairly compensated or they won’t, but it certainly will not be because we didn’t stand by their sides for the duration,” said lead Spanish Counsel for the Plaintiffs, Ivan De Miguel Perez.

These recent developments give hope that justice will finally be served and the full story of what happened will finally be told.