Vivas v. Boeing Co.

• Decision Date: 15 June 2009
• Docket Number: No. 1-08-2740 (cons.).,No. 1-08-2726.,1-08-2726.,1-08-2740 (cons.).
• Citation: 392 Ill. App. 3d 644,911 N.E.2d 1057
• Parties: Jose L. VIVAS, Joshelyn Vivas, a Minor, by Her Father and Next Friend Jose L. Vivas, Jacquelyn Vivas, a Minor, by Her Father and Next Friend Jose L. Vivas, Jharlene Vivas, a Minor, by Her Father and Next Friend Jose L. Vivas, Abriel Vivas, and Diana Vivas, Plaintiffs-Appellees, v. THE BOEING COMPANY, a Delaware Corporation, and United Technologies Corporation, a Delaware Corporation, Individually and Doing Business as Pratt and Whitney, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

911 N.E.2d 1057

392 Ill. App. 3d 644

Jose L. VIVAS, Joshelyn Vivas, a Minor, by Her Father and Next Friend Jose L. Vivas, Jacquelyn Vivas, a Minor, by Her Father and Next Friend Jose L. Vivas, Jharlene Vivas, a Minor, by Her Father and Next Friend Jose L. Vivas, Abriel Vivas, and Diana Vivas, Plaintiffs-Appellees, v. THE BOEING COMPANY, a Delaware Corporation, and United Technologies Corporation, a Delaware Corporation, Individually and Doing Business as Pratt and Whitney, Defendants-Appellants.

No. 1-08-2726.

No. 1-08-2740 (cons.).

Appellate Court of Illinois, First District, First Division.

June 15, 2009.

William T. Cahill, Scott F. Seablom (pro hac vice), Perkins Cole LLP, Chicago, IL, for Appellant Boening Company.

Ralph V. Pagano (pro hac vice), Mendes and Mount, New York, for Appellant United Technologies Corporation.

Donald J. Nolan, William J. Jovan, Nolan Law Group, Chicago, IL, Floyd A. Wisner, Wisner Law Firm, St. Charles, IL, Paul Jon Layne (pro hac vice), Silva & Silva, Coral Gables, FL, for Appellees.

Presiding Justice ROBERT E. GORDONdelivered the opinion of the court:

After an airplane flight crashed near Pucalpa, Peru on August 23, 2005, plaintiffs brought claims of product liability and of negligent design, manufacture and warning against defendant The Boeing Company (Boeing), which designed and manufactured the airplane, and defendant United Technologies Corporation (UTC), which manufactured the airplane's engines. Plaintiffs were the survivors of the crash, and representatives of decedents who died in the crash.

Defendants moved to dismiss on the grounds of forum non conveniens in favor of an action in the Republic of Peru; and the circuit court of Cook county denied the motion. This interlocutory appeal followed.

Defendants sought an action only in Peru, not in the state of Washington where defendant Boeing assembled the aircraft, and not in the state of Connecticut where defendant UTC manufactured the aircraft's engines. Since defendants did not seek an action in another state, the issue before us is only whether Peru is a more convenient forum.

For the reasons discussed below, we cannot find that the trial court abused its discretion by denying defendants' motion to dismiss on forum non conveniens grounds. On the one hand, all of the evidence relevant to the design, manufacture and assembly of the aircraft and its engines is in the United States. In addition, a significant portion of the evidence regarding the crash is also in the United States, as a result of the participation of the American defendants and American authorities in the investigation of the crash by the Peruvian government. On the other hand, a significant portion of the crash evidence is likely to be still in Peru. Given these facts, we cannot find that the trial court abused its discretion by balancing the relevant factors and denying defendants' motion.

BACKGROUND

The following facts are not in dispute. On August 23, 2005, an airplane departed from Lima, Peru, heading towards Pucalpa, Peru, and crashed while attempting to land at an airport in Pucalpa. Of the 98 persons on board the airplane, 58 survived. The subject aircraft was designed, assembled and sold in the state of Washington by defendant Boeing; and its engines were designed, manufactured and sold in the state of Connecticut. On August 14, 1981, the aircraft and its engines were delivered in the state of Washington to South African Airways, pursuant to a purchase agreement with the Republic of South Africa. In June 2005, just a few months before the crash, the aircraft was leased by a South African entity to a Peruvian entity, which operated the subject flight.

The Parties

Plaintiffs are survivors of the airplane crash, as well as representatives of decedents. These 16 consolidated actions concern the deaths of 18 passengers and 2 members of the flight crew; and the injuries to 47 passengers and 2 flight attendants. Thus, the actions pertain to 69 of the 98 passengers.

Although plaintiffs are primarily residents of Peru, some plaintiffs are United States citizens. Specifically, 42 of the 49 personal injury plaintiffs are Peruvian citizens and residents; 1 is a Brazillian; and 6, who are members of the Vivas family, are United States citizens who reside in New York. Of the 20 decedents, 18 were Peruvian; 1, Columbian; and 1, Spanish.

One of the plaintiffs, Jessica Wilburs, is a United States citizen and an Illinois resident. On August 22, 2007, Wilburs was appointed, by the circuit court of Cook county, as a special administrator to represent the estate of decedent, Eleazar Valenzuela, and to act on behalf of his survivors, namely his widow and three minor children.¹

Defendant UTC manufactured the airplane engine, while defendant Boeing assembled the aircraft, which was a 24-year-old Model 737. Both defendants are Delaware corporations. Defendant UTC has its principal place of business in Connecticut, where the engine was manufactured. Boeing has its headquarters in Chicago, Illinois, where suit was filed. However, the aircraft at issue was assembled in the state of Washington, where Boeing formerly had its headquarters.

Transporte Aereos Nacional De Selva, S.A., of Peru (TANS), which operated the downed Flight 204, was originally named as a defendant, but is no longer a party to these consolidated actions. TANS was originally named as a defendant in 11 of the consolidated actions. Approximately half of the consolidated actions were removed to federal court. On August 21, 2007, a federal district court granted TANS's motion to dismiss under the Foreign Sovereign Immunities Act of 1976 (28 U.S.C. §§ 1330, 1332(a)(2) through (a)(4), 1391(f), 1441(d), 1602 et seq. (2000)). On August 23, 2007, the cases pending in federal court were remanded to the circuit court of Cook County. Plaintiffs in the other actions voluntarily dismissed TANS. Thus, TANS is no longer a defendant in the consolidated actions.

In an attorney affidavit submitted in support of its forum non conveniens motion, defendant Boeing claimed that TANS was "reported" to have settled a number of the personal injury and wrongful death claims. Attached as an exhibit to the affidavit was "the form of release and an English translation." The release purported to release not only TANS but also "[t]he manufacturer of the aircraft" and "[a]ny person involved in the manufacture, repair, maintenance, service or piloting of the aircraft, and/or of any of its motors, parts, and components." In its appellate brief, defendant Boeing claims that "it is likely" that all the evidence relating to the releases is in Peru. However, defendant Boeing does not claim that it knows for certain whether these releases were, in fact, executed.

The Claims

The complaints in the consolidated actions included claims against defendants Boeing and UTC for product liability and for the negligent design, manufacture, assembly, sale and warning concerning the airplane and its engines. Plaintiffs' claims concerned the alleged inability of the aircraft and the engine to operate safely in a tropical environment. Plaintiffs' claims included allegations that the aircraft was incapable of continued safe flight in tropical environments when the clouds contain high liquid-water content; that the engine's design failed to adequately deflect precipitation away from the engine core; that the engine had a relight system that failed to properly energize igniters in the engine in the event of a flameout; and that the aircraft incorporated a windshear detection system design that failed to provide adequate warnings to the flight crew. Plaintiffs also alleged that defendants failed to provide adequate instructions and warnings about the safe operation of the airplane and the engines in a tropical environment.

Evidence of Aircraft Design: In United States.

Defendant Boeing concedes that it assembled the aircraft at issue in this lawsuit, and that the evidence relevant to the aircraft's design and assembly is located in the United States, specifically in the states of Washington and Kansas. In support of its forum non conveniens motion, defendant Boeing submitted the affidavit of Richard Breuhaus,² the chief engineer of its air safety group investigation group. With respect to the aircraft's design and assembly, Breuhaus stated:

"The subject aircraft was assembled in the state of Washington. Boeing's activities in connection with the design, manufacture, assembly, testing, certification, and customer support services for 737 model aircraft were and are based primarily in the State of Washington, although some of this activity occurred in Kansas. Documents and witnesses within Boeing's possession, custody and control relating to the design, manufacture, assembly, testing, certification, and customer support services for all Boeing 737 model aircraft, including model 737-244, aircraft, are located mostly in the State of Washington, although some are in Kansas."

Defendant UTC concedes that it manufactured the engines at issue in this lawsuit, and that the evidence relevant to the engine's design and manufacture is located in the United States, specifically in the state of Connecticut. Michael Barton, the manager of the flight safety office, testified in his discovery deposition³ that the subject engines were designed and manufactured in Connecticut.

Specifically, Barton testified that the JT8D-17A engines manufactured by defendant UTC were the engines used on the aircraft at issue; that the JT8D engine was first developed by defendant UTC in the late 1950s or early 1960s; and that the 17A version was first certified for use in 1982. Barton testified that all the design documents for the JT8D series of engines are located in Connecticut; that the testing of the JT8D-17A engine design was performed either in Connecticut or Florida; that each individual engine is also tested; that this individual testing is also performed in either...