(CN) - The 9th Circuit appears to continue to doubt lawsuits stemming from a 2008 plane crash in Spain that killed 154 people should be litigated in the U.S., rather than in Spanish courts.
During a hearing this week to consider the defendant's request for dismissal, Steven Rosenthal, the attorney representing 11 crash victim families, argued that fault for the crash lies with a device that corrects pilot error and insisted that claims against the U.S. manufacturers of the aircraft belong in U.S. District Court.
In August 2008, Spanair flight JK5022 crashed during takeoff in Madrid, Spain, killing 154 people and injuring 18 others. Investigators determined that the pilots did not position the wings' slats and flaps to provide the additional lift needed to take off, and that a warning system that alerts pilots about the danger did not sound.
The plane that crashed was an MD-82 built McDonnell Douglas, which merged with Boeing in 1997.
Boeing attorney Eric Wolff told the three-judge panel the trial belongs in Spain because "the defense in this case is 'We're not the proximate cause, the pilots are the proximate cause, Spanair is the proximate cause.'"
The pilots had multiple opportunities to avert the crash, but they failed to, partly because of Spanair's policies regarding pre-flight procedures, Wolff said.
Boeing advises airline pilots to check the takeoff warning system prior to flight, but Spanair did not require the practice, Wolff said.
More than 200 plaintiffs, most from Spain and none from the U.S., have filed wrongful death, personal injury and products liability suits against aircraft manufacturer McDonnell Douglas Corp. and its successor, the Boeing Company, as well as various alleged component manufacturers.
Plaintiff attorney Rosenthal argued that the cases are about design defects and that the district court "failed to appreciate the weights given to certain critical factors in" its analysis.
The district court's order that dismissed a motion for reconsideration said Spain is the proper forum for the lawsuits "because the accident occurred at a Spanish airport on Spanish soil when a plane operated by a Spanish airline, flown by Spanish pilots, and carrying mostly Spanish citizens attempted to fly from one Spanish city to another."
Rosenthal argued that unlike prior cases involving foreign airplane crashes and foreign pilots, his clients' claims center on the faulty takeoff warning system.
"We have the undisputed failure of an American designed and made part whose only purpose is to warn of pilot error, which takes the pilot error aspect of the case largely out of the equation," he said.
Circuit Judge Richard Paez said he thought the district court's dismissal order was "very thorough and very complete" and asked where the district court judge had gone wrong in balancing the jurisdictional issues.
The victims' families argued that Spain could not provide an adequate forum because the Spanish courts would not proceed with the families' civil claims until criminal allegations against the plane's mechanics were resolved.
"That's not going to get you very far, especially now that apparently the criminal prosecutions have been dismissed," Judge Paez said.
"Now you are stuck looking at the balancing that was done, and I'd like you to tell me which factor the district court improperly balanced," Judge Paez said.
Rosenthal replied that both public and private interests were improperly weighed.
Circuit Judge Andrew Hurwitz told Rosenthal he had to show not only a misbalancing, but that the trial court had abused its discretion.
Hurwitz also asked why the plaintiffs, none of whom are U.S. citizens, have a private interest in having their claims heard here.
Because McDonnell Douglas, which built the plane and later merged with Boeing, and Leach International, which made the warning system, are U.S. companies, Rosenthal said.
He continued, "The real issue in this case is if the failure to have a redundant warning system is a violation of United States law," adding that U.S. law is "ultimately where the rubber meets the road in this case."
Judge Hurwitz interrupted to ask, "Why is United States law applicable to this accident?"
Rosenthal said because of the government aviation safety interest concerning the warning system.
Rosenthal, though, was unable to field a question from Judge Hurwitz about whether any U.S. appellate court had ever found that a case where all the parties were foreign nationals belonged in a U.S. district court on the basis of an abuse of discretion analysis.
Boeing's attorney also spoke for the component manufacturers Leach International, Esterline Technologies, Eaton, Honeywell International and Ametek Inc.
Wolff emphasized that the three-judge panel could only consider whether the dismissal issued by Judge Gary Feesse of California's Central District was an abuse of discretion, a standard of appellate review that gives the trial court the benefit of the doubt.
Judge Harry Pregerson, whose questions punctuated rather than sustained the hearing, asked Wolff, "Why does Boeing want to go to Spain?"
"Boeing wants to go to Spain because it is the only forum where you can get everyone together, and especially Spanair," Wolff said.
Wolff said that the cockpit voice recording shows that "they are going through the checklist, the first officer and the captain, and they get to the check of the slats and flaps and the captain is getting irritated that it is taking so long to get away ... and he interrupts the checklist," skipping the check.
Spain is the proper venue because, Wolff said, "The cockpit voice recorder would be the single best evidence for the defendants, and it should be heard by native Spanish speakers."
Only a native speaker would hear the irritation in the captain's voice or pick up the fact that the first officer can be heard calling his girlfriend on a cell phone, Wolff said.
Given the distractions and evidence that the flight officers had ignored several other safety alerts, including a stall warning that befuddled the pilots, Wolff said the takeoff warning system would not have averted the disaster.