Earl v. The Boeing Co., Civil Action 4:19-cv-507

CourtUnited States District Courts. 5th Circuit. United States District Court of Eastern District Texas
PartiesDAMONIE EARL, ET AL., Plaintiffs, v. THE BOEING COMPANY, ET AL., Defendants.
Decision Date03 September 2021
Docket NumberCivil Action 4:19-cv-507

DAMONIE EARL, ET AL., Plaintiffs,


Civil Action No. 4:19-cv-507

United States District Court, E.D. Texas, Sherman Division

September 3, 2021



Pending before the Court is Plaintiffs' Motion for Class Certification (Dkt. #276). Having considered the Motion, the relevant pleadings, and the arguments of counsel, the Court concludes that the Motion should be granted as set forth herein.


It all began in the nineties with a handshake. The then-chairmen of The Boeing Company (“Boeing”) and Southwest Airlines (“Southwest”) shook hands to seal a significant deal between their companies. Boeing, a leading manufacturer of commercial airplanes, promised Southwest, a prominent commercial airline, that no airline would pay a lower price for Boeing's 737-series aircrafts than Southwest (Dkt. #165 at p. 6). In exchange, Southwest promised Boeing that Southwest's fleet would be made up exclusively of Boeing 737s (Dkt. #165 at p. 6). This symbiotic relationship between Boeing and Southwest has been integral to their businesses since the deal was struck (Dkt. #276 at pp. 8-9).

With Southwest's fleet due for a large-scale replacement at the end of the 2010s, Boeing and Southwest made a joint announcement in 2011: Boeing would release a new, more fuel-efficient 737 aircraft-the 737 MAX 8-and Southwest would place an initial order for 300 MAX 8s (Dkt. #276 at p. 10).

Southwest was involved in Boeing's development of the MAX 8. Early in the process, Southwest communicated its hope to Boeing that the MAX 8 would require, at most, “Level B” pilot training (Dkt. #276 at p. 10). Were the required training set at Level B or lower, MAX 8 pilots would only need to train on a digital device like a computer or tablet; training for a higher level would be more expensive and likely require use of a full-scale flight simulator (Dkt. #276 at p. 10 & n.5). In May 2013, Southwest and Boeing entered into an agreement that Boeing would ensure the Federal Aviation Administration (“FAA”) would approve a MAX 8 “pilot training differences program comprised of Training at no levels beyond Level B” (Dkt. #276 at p. 11). With this program in place, Southwest would be able to integrate the operation of the MAX 8 seamlessly into its existing fleet (Dkt. #276 at p. 11; see Dkt. #431 at pp. 23:10-24:3). Under this agreement, if Boeing failed to secure FAA approval for the desired training requirement, Boeing would have to pay Southwest significant sums of money and cover the cost to train Southwest's pilots to operate the MAX 8 (Dkt. #276 at pp. 11-12).

When assessing the ramifications of failing to meet this contractual condition, Mark Forkner (“Forkner”), then a technical pilot for Boeing, concluded that Boeing's loss would be “so big, and the non-financial impacts so bad, that to try and determine a number [wa]s a waste of time” (Dkt. #276, Exhibit 48 at p. 2). The consequences of failure were clear-Boeing needed to secure the Level B pilot-training requirement (Dkt. #276 at pp. 12-13). The drive to do so intensified in 2015 when the FAA informed Boeing that the company's pilots would be unable to operate all three versions of the 737 interchangeably (Dkt. #276 at p. 13). With Southwest's entire business model potentially in jeopardy, Southwest decided to fly MAX 8s and 737 NGs exclusively, predicating this strategy on ensuring the Level B training requirement as between the two aircrafts (Dkt. #276 at p. 14).

At this point, Boeing and Southwest worked closely with each other to identify differences between the MAX 8 and the NG as a means to secure the Level B requirement (Dkt. #276 at p. 14; see Dkt. #276, Exhibit 32). The companies communicated frequently about the MAX 8 in the wake of the FAA's announcement regarding the interchangeability of Boeing's fleet. During this time period, Southwest first encountered a new system Boeing included on the MAX 8: the Maneuvering Characteristic Augmentation System (“MCAS”) (Dkt. #276 at p. 14).

In an effort to make the MAX 8 more fuel-efficient, Boeing included larger, more powerful engines to the plane's chassis and positioned the engines closer to the aircraft's nose (Dkt. #165 at p. 7; Dkt. #276 at p. 14). The effects of this design change became apparent during testing. The shift in the aircraft's weight and weight distribution caused the MAX 8's nose to tilt upward during certain aerial maneuvers (Dkt. #276 at p. 15). Boeing developed and installed the MCAS to address the MAX 8's tendency to tilt upward due to weight distribution of the engines. If unaddressed, the difference between the MAX 8 and the NG would be significant enough to warrant a pilot-training requirement more strenuous than Level B (Dkt. #276 at p. 15).

MCAS is a computer-controlled system that corrected this upward tilt by, among other things, “automatically pitching the nose of the airplane down as necessary” (Dkt. #165 at p. 7). It worked as follows: the MCAS system received information from an angle-of-attack (“AoA”) sensor located on the side of the aircraft's nose (Dkt. #165 at p. 8). The AoA is a critical metric during flight because it helps ensure the proper amount of air flows over and under the wings to provide sufficient lift, i.e., one of the four forces of flight that keeps aircraft airborne (Dkt. #165 at p. 8). When the AoA sensor detected an upward tilt in the airplane's nose that caused the AoA to climb too high, MCAS would activate and automatically adjust the nose downward to return the MAX 8 to aerodynamic equilibrium (Dkt. #165 at p. 8; see Dkt. #276 at p. 15 & n.6).

(Image Omitted)

(Dkt. #165 at p. 8 illus.).

Despite including this new feature in the MAX 8, Boeing did not list the addition of MCAS on the pilot checklists distributed to its customers, acting upon a recommendation Southwest made (Dkt. #276 at p. 15; see Dkt. #276, Exhibit 55 at p. 4). In other words, Boeing gave “detailed manuals to MAX 8 pilots” without including information about this “new automated system” onboard (Dkt. #276 at p. 15; see Dkt. #165 at pp. 9-10).

Boeing and Southwest's joint process to identify and eliminate differences between the MAX 8 and the NG continued for some time, culminating with Southwest's meeting with the FAA regarding the pilot-training requirement (Dkt. #276 at p. 16). Plaintiffs allege that, at the meeting, Southwest emphasized “the lack of differences between the NG model and the MAX” and failed to mention at least one pertinent distinction between the aircrafts (Dkt. #276 at p. 16). Three months later, Southwest received word from the FAA that the MAX 8 had been validated: Level B-the same type rating as the NG, meaning that “Southwest pilots already trained on the 737 NG model would need only to complete a simple iPad course ‘running under 3 hours,' with ‘no special currency issues or formal checks of any sort identified by the regulators,' to be able to also fly the MAX” (Dkt. #276 at p. 17 (brackets and ellipsis omitted)). Following this validation, Boeing, through Forkner, began traversing the globe to achieve comparable approvals from aviation regulators in other countries, including Indonesia (Dkt. #276 at p. 17).

A few months after FAA validation, Forkner and his Boeing colleague Patrik Gustavsson (“Gustavsson”) noticed an issue with MCAS (see Dkt. #276, Exhibit 45 at pp. 2-3). As it turned out, during the time in which Boeing and Southwest were identifying and eliminating differences between the MAX 8 and the NG, Boeing had made changes to the MCAS system (Dkt. #276 at p. 18). Despite coming across this information post-FAA-validation in the flight simulator and observing that MCAS was unexpectedly adjusting the MAX 8's nose downward, neither Forkner nor Gustavsson “told the FAA or any other regulators about the change to the MCAS and the dangers it posed” (Dkt. #276 at p. 18).

Around this same time, Boeing began delivering MAX 8s to Southwest.[1] Notably, in October 2016, Defendants released a marketing video stating, inter alia, that Defendants “had ‘simulated the kind of real-life conditions the [MAX 8] will encounter on any given day,' and that because of their joint testing, there would be ‘no surprises' and ‘no secrets'” (Dkt. #276 at p. 18 (original alterations omitted); see Dkt. #165 at pp. 10-11).

Then tragedy struck. On October 29, 2018, the passengers and crew of Lion Air Flight 610 boarded a MAX 8 in Jakarta, Indonesia. Shortly after takeoff, an AoA sensor failed, which sent erroneous information to the plane's flight-control computer that indicated a stall was imminent (Dkt. #165 at p. 11; Dkt. #276 at p. 19). The perceived stall warning activated the aircraft's MCAS system, which began automatically adjusting the plane's nose downward to prevent the “imminent stall.” The flight crew attempted to regain operational control of the MAX 8, but ultimately for naught. Lion Air Flight 610 fell from the sky into the Java Sea. No one aboard survived the crash.

One week after the Lion Air crash, Forkner, now a technical pilot for Southwest, learned from his former colleagues at Boeing that the FAA would be publishing an advisory regarding the failure of the AoA sensor aboard Lion Air Flight 610's MAX 8 (Dkt. #276 at p. 19). After discussion among Southwest management about the potential of preemptively grounding their MAX 8s, Southwest Chief Operating Officer Mike Van de Ven (“Van de Ven”) decided that Southwest would continue to operate the MAX 8s in their fleet (Dkt. #276 at pp. 19-20). Van de Ven made it clear that Southwest was to follow Boeing's instruction to the letter, no matter the instruction (Dkt. #276 at p. 20; Dkt. #276, Exhibit 66 at p. 2). As a result, Southwest's internal risk assessment of the MCAS system did not recommend grounding the MAX 8s because “its pilots were now informed about the MCAS and...

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