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In Re Air Crash At Madrid

March 22, 2011


The opinion of the court was delivered by: Gary Allen Feess United States District Judge




On August 20, 2008, a McDonnell Douglas MD-82 aircraft operated by Spanair as flight JK5022, crashed during takeoff in Madrid, Spain, killing 154 people and injuring 18 others. (Docket No. 198, Declaration of Thomas K. Dodt ("Dodt Decl.")

¶¶ 3, 6.) Evidence shows that the plane crashed after its takeoff warning system ("TOWS") did not sound to alert the pilots that the wings' slats and flaps were not configured in takeoff position. (Id. ¶¶ 11, 15.) Now, 204 plaintiffs, most of whom are citizens of Spain and none of whom are United States citizens, represent 100 passengers and estates who have brought 116 wrongful death and personal injury suits asserting negligence and strict products liability claims against McDonnell Douglas Corp., its successor, the Boeing Company, and various alleged component manufacturers. (Docket No. 199, Declaration of Douglas E. Winter ("Winter Decl.") ¶ 3.) These suits were brought in several district courts and have been consolidated in the Central District of California by the Judicial Panel on Multidistrict Litigation. (Docket No. 1.)

Defendants, who have stipulated to submit to the jurisdiction of the Spanish courts over these cases, note the strong interest of Spain in the outcome of this litigation given that the aircraft operator, pilots, and most victims are Spanish citizens and that the accident occurred at a Spanish airport on Spanish soil. They now move to dismiss this case under the doctrine of forum non conveniens. (Docket No. 195.) Plaintiffs oppose and assert that this product liability action, which is brought against United States defendants who are allegedly responsible for defects in the aircraft and the resulting deaths and injuries, should be heard in United States courts.

Having fully considered the parties voluminous briefing and their arguments at the hearing on this motion, the Court concludes that Defendants' motion is meritorious. Accordingly, for the reasons discussed in detail below, the Court GRANTS the motion and dismisses the pending lawsuits.



On August 20, 2008, a McDonnell Douglas MD-82 aircraft operated by Spanair as Flight JK5022, crashed on takeoff at Barajas Airport in Madrid, Spain. (Dodt Decl. ¶ 3.) The flight was bound for Las Palmas de Gran Canaria, Spain. (Id.) Of the 172 people on board, only 18 survived. (Id. ¶ 6.) The victims were predominantly Spanish. The Plaintiffs in these suits represent 100 passengers, of whom 92 are Spanish, three German, one Brazilian, one Gambian, one Indonesian, one Swedish, and one Turkish. (Winter Decl. ¶ 4.) There were no American citizens on the flight.

It is undisputed that the plane crashed because leading-edge slats and trailing-edge flaps that pilots must extend at takeoff were retracted. (Dodt Decl. ¶ 14; Opp. at 2.) The dispute is over who or what is responsible for the slats' and flaps' improper configuration.

The Spanish Civil Aviation Accident and Incident Investigation Commission ("CIAIAC" or "the Commission") initiated an investigation and invited the U.S. National Transportation Safety Board ("NTSB") and Federal Aviation Administration ("FAA") to participate. (Dodt Decl. ¶ 4.) The Commission issued an interim report on the causes of the accident in August of 2009. (Docket No. 300, Appendix, Ex. C.) The interim report explained that, after the plane left the gate, the Ram Air Temperature Prove ("RAT"), a piece of equipment designed to be heated during flight to avoid ice accumulation in the instrument, reflected an abnormally high temperature. (Id. at 100, 110.) The plane returned to the gate where maintenance personnel disabled the relay (the R2-5) that was routing power to the RAT. (Id.) According to plaintiffs, that same relay routes power to the "Takeoff Warning System" (TOWS). This system is part of the plane's "Central Aural Warning System" (CAWS), which provides various audible warnings to the crew when certain potentially unsafe conditions arise or when components are improperly configured. (Id. at 106.) The TOWS provides warnings, in the form of an alternating sequence of tones and a synthetic voice, when the slats and flaps are not configured for takeoff. (Id. at 106--07.)

In short, according to plaintiffs, when the relay was disabled, TOWS was cut off from its power supply and was rendered inoperable during the takeoff of Flight JK5022. When the pilots began to accelerate that aircraft down the runway, they did not receive the aural warning that the flaps and slats were not properly deployed. (Id.)

The interim report concluded that, in addition to the TOWS failure, other systems failed, allowing the plane to attempt to take off without the proper slat and flap configuration: compliance with the airplane configuration checklist and the checklist to confirm and verify the airplane's actual configuration. (Docket No. 300, Appendix, Ex. C at 138.) Spanair's normal procedures require the slats and flaps to be checked after the engines are started, during taxi, and when takeoff is imminent. (Id. at 128--29.) The recording from the cockpit voice recorder shows that the pilots did not perform the engine-start check and that the pilot did not respond to the co-pilot's check during taxi.

(Id. at 118.) Although the pilots voiced the final "takeoff imminent" check, the Commission concluded that they did not actually check the cockpit indicators to confirm the slats' and flaps' positions. (Id. at 137.) Defendants highlight that other things also would have indicated that the slats and flaps were not appropriately configured: the position of the cockpit lever controlling the flaps and slats, an illuminated cockpit display showing the slats' and flaps' positions, and indicators of an imminent stall. (Dodt Decl. ¶ 12.)


MD-82s were designed, tested, and certified by MDC in Long Beach, California, during the late 1970's and early 1980's. (Dodt Decl. ¶ 8.) The FAA certified the MD-82 aircraft type on July 29, 1981. (Id. ¶ 8.) MDC sold more than 569 MD-82 airplanes to airlines around the world before ceasing production in 1997. (Id.) According to Plaintiffs, U.S. operators bought 361 of these. (Opp. at 22.)

The accident aircraft was built in Long Beach in 1993 and delivered to Korean Airlines that year. Spanair, an airline incorporated and having its principal place of business in Spain, began operating the aircraft in 1998 under Spanish registration. (Dodt Decl. ¶¶ 7, 9.)

Leach International Corp. designed, manufactured, assembled, tested, and certified the R2-5 relay for the accident aircraft. (Winter Decl. ¶ 7.) The other Defendants are alleged to have manufactured component parts, but deny any knowledge that any of their products were used on the accident aircraft. (Id. ¶¶ 8--11.)


Madrid's "Examining Court 11" is currently conducting a criminal investigation of the accident. (Docket No. 197, Declaration of Prof. Pablo Salvador-Coderch ("Salvador Decl.") ¶ 17.) In October 2008, the court charged two Spanair mechanics and the head of Spanair's maintenance department with 154 counts of manslaughter and 18 counts of negligent injury, but shortly thereafter dismissed the charges against one of the mechanics. (Id.) Those proceedings are still in the investigative phase. (Deposition of Prof. Pablo Salvador-Coderch ("Salvador Depo.") at 124:4--125:4.)

In Spain, criminal proceedings resolve civil claims for damages that proximately resulted from a defendant's criminal offense. (Salvador Decl. ¶ 18.) Employers have respondeat superior liability for these damages. (Id.) Victims or their representatives or estates, however, can waive their right to compensation through the criminal proceedings and pursue a separate civil action against those persons and their employers. (Id. ¶ 20.)


Plaintiffs contend that the Spanair crash at issue in this case is strikingly similar to a crash of a McDonnell Douglas MD-82 on takeoff from Detroit Metropolitan Airport in 1987. (Mem. at 1.) According to Plaintiffs, the NTSB concluded that the TOWS system in that plane did not receive electrical power and thus failed to warn the crew that the plane was not properly configured for takeoff. (Id.) Plaintiffs further report that the NTSB made six recommendations, including a design modification that would illuminate a "fail" light in the event of a circuit power loss, but Defendants did not adopt that recommendation. (Id. at 1--2.) Plaintiffs contend that TOWS failures now account for 49 accidents. (Id. at 7.) On the basis of these allegations, Plaintiffs contend that "[t]his case is about a design defect that remains uncorrected despite Defendants' knowledge of it for over 20 years." (Id. at 2.)

Defendants dispute Plaintiffs' description of the Detroit accident's cause and the recommendations following its investigation. (Reply at 1.)


As a condition for a forum non conveniens dismissal, Defendants have agreed to:

(1) submit to jurisdiction before the appropriate Court of First Instance in Spain;

(2) toll any applicable Spanish statute of limitations for 120 days after dismissal by this Court;

(3) make available in Spain all evidence and witnesses located in the U.S. within their possession, custody, or control that the Spanish court deems relevant; and

(4) satisfy any final, post-appeal judgment awarded against them in Spain. (Winter Decl. ¶ 2.)



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