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Boeing May Have to Pay For Victims' 'Pain and Suffering' in Ethiopian Airlines Crash​ ​Lawsuit

Boeing aircraft on tarmac.
By Natasha Bakirci, LLB, LLM | Last updated on

The tragedy from several years ago may ring a bell: in March of 2019, Ethiopian Airlines Flight 302 nosedived into the ground near Addis Ababa, Ethiopia, about six minutes after takeoff. All 157 passengers and crew members on board were killed.

Of course, the families of the deceased soon took up legal battles with the makers of the plane, Boeing. After years of litigation, a federal judge has held that the relatives of the victims of the crash can seek compensation for their pre-impact pain and suffering before the plane hit the ground.

A Fatally Fated Aircraft

The Ethiopian Airlines flight used the Boeing model called the "737 Max," which had just been launched and taken its maiden voyage in 2016. But the Addis Ababa incident was not the first time this plane model had resulted in a fatal accident. Just a year earlier, in 2018, a different 737 Max operated by Lion Air crashed into the Java Sea thirteen minutes after takeoff, killing all 189 passengers on board. That flight continues to be the highest death toll taken by any 737 series aircraft.

The Ethiopian Airlines crash prompted the worldwide grounding of the MAX in March 2019 for 20 months. The aircraft was allowed to return to service after the Federal Aviation Administration (FAA) required the manufacturer to implement design and training changes. The grounding cost Boeing more than $20 billion—but its financial troubles were far from over.

Families of Crash Victims Go to Court

The feds weren't the only ones holding Boeing accountable; relatives of the victims wanted their day in court, too.

Attorneys for families of the crash victims say they should be compensated for the suffering and terror their relatives may have experienced in the minutes before the plane crashed. The victims' lawyers argue there is "no dispute that passengers and crew members were conscious and fully aware that the plane was plummeting before it actually crashed at nearly 600 mph."

The plaintiffs argued in court that the passengers aboard the plane "undeniably suffered horrific emotional distress, pain and suffering, and physical impact/injury while they endured extreme G-forces, braced for impact, knew the airplane was malfunctioning, and ultimately plummeted nose-down to the ground at terrifying speed."

Lawyers for the victims noted that Boeing admitted under the agreement that the 737 MAX "had an unsafe condition, and that it would not attempt to blame anyone else" for the crash, confirming that it was "committed to ensuring that all families who lost loved ones in the accidents are fully and fairly compensated for their loss."

In November 2021, Boeing agreed to acknowledge liability for compensatory damages in lawsuits filed by families of the 157 people killed in the crash. As a result of the agreement between Boeing and the families, lawyers for the victims would not seek punitive damages and Boeing would not challenge the lawsuits being filed in Illinois.

Boeing Fights "Pain and Suffering" Evidence

But in February 2023, Boeing sought to exclude any evidence of pain and suffering that passengers may have experienced before crashing. The company's lawyers stated that while they don't dispute the passengers suffered during the tragic flight, any speculative pain suffered by the passengers in the milliseconds before their death is irrelevant in determining damages because they would not have been aware they were injured before they died.

Boeing's attorneys claimed that "undisputed evidence shows that death was instantaneous, and any speculation about what the passengers might have felt as the plane made impact is unfounded." They pointed out that, as the filing is under Illinois law, damages can only be paid for crash victims' "conscious pain and suffering" if there is verifiable evidence that suffering indeed occurred. In this Ethiopian Airlines case, a medical expert cited by Boeing asserted that the crash took place at a speed faster than the human brain can process pain. Therefore, the company believes additional compensation to victims' families for pre-impact pain and suffering would be excessive.

Unlike other states, Illinois courts have yet to fully address whether a plaintiff can seek damages for a deceased person's "pre-impact fear." A precedent set by a fatal 1979 airplane crash outside Chicago limited the damages that could be sought for such mental distress. The case was called In re Air Crash Disaster Near Chicago, Ill. Etc, and involved a different plane manufacturer. That case concluded that, under Illinois law, since an individual can recover for emotional distress or suffering only when the distress is caused by a physical injury, a woman could not recover for the fright and terror her daughter may have experienced in anticipation of physical injury.

Future of Airline Fatalities to Be Decided

Federal Judge Jorge Alonso will preside over the trial due to start in federal court in Chicago on June 20. The judge rejected Boeing's motion to rule out pre-impact pain and suffering damages. He found that: "there is sufficient evidence to support a reasonable inference that these passengers experienced pre-impact fright and terror, and that experience is part of the process or manner of death." Consequently, a jury could reasonably infer from the evidence that the passengers "perceived that they were going to crash, horrifically, to their certain death." This opens the way for pain and suffering to be considered when determining compensation for the victims' family members.

The families of the 737 MAX victims will surely be anticipating the upcoming ruling. We offer our sincerest condolences.

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