Boeing's Defence? TWA
800 Downed By U.S. Missile
TWA Flight 800: Reasonable Doubt?
By Kelly Patricia O'Meara
Vol. 15, No. 5
Insight has learned the Boeing Co., in an attempt to limit its liability, may defend itself in civil litigation with the theory that the airliner was downed by a U.S. missile.
In the rough-and-tumble world of civil litigation, the almighty dollar is king. Whether in a divorce proceeding or product-liability or wrongful-death lawsuit, plaintiffs seek huge awards and defense counsels dig in to avoid or minimize the payout. So it should come as no surprise that lawyers on both sides of the multimillion-dollar lawsuit involving the destruction of TWA Flight 800 are gearing up for a knock-down-drag-out fight should the case ever go to trial.
But in monitoring the behind-the-scenes negotiations between the Boeing Co. and the law firms representing families of the 230 dead from that July 17, 1996, midair explosion just east of Long Island, N.Y., Insight has uncovered a bizarre twist that shows the extent to which some defendants believe they must go to avoid huge liability judgments.
According to confidential sources, Boeing is considering whether to spring a stunning legal tactic in its defense -- one that greatly is upsetting some of the families mourning the loss of loved ones. Based on interviews and secret corporate documents, Insight has discovered that if the civil case goes to trial the legal team representing the giant airplane manufacturer may invoke a missile theory to try to absolve Boeing of liability.
Moreover, it has been learned, Boeing's legal team already has raised the missile claim as a tool to chip away at the resolve and ultimate financial demands of the victims' families, hoping to reduce settlements by half.
"At this point, Boeing is seeking a 50 percent discount on each case because of its belief that a jury will conclude a missile downed Flight 800," declares one of the secret legal memos obtained by Insight. As a well-placed source explains: "Boeing attorneys will try to plant reasonable doubt and make a jury believe that a missile downed TWA 800."
That Boeing would engage in such a ploy has shocked the families and their lawyers, most of whom have come to agree with the consensus conclusion by the FBI and the National Transportation Safety Board, or NTSB, that Flight 800 was downed by an explosion in the plane's center fuel tank caused by mechanical failure and not by a missile fired either accidentally by elements of the U.S. military, which were scheduled to conduct air/sea training exercises nearby, or by terrorists with a grudge against the United States.
However, according to Insight's sources, Boeing's lawyers believe that members of any jury drawn from New York would walk into court with the preconceived notion that it could have been a missile that blew Flight 800 out of the sky. They are convinced that in the absence of proof-positive that mechanical failure was at fault, it would not take much to get a jury to consider the possibility that a missile downed the flight.
Jim Walters, vice chairman of the Airline Pilots Association, or ALPA, Accident Investigation Board, finds it hard to believe Boeing could have any evidence that a missile was involved. "Boeing has signed off on -- agreed with -- all or most of the field notes during the investigation," he says, adding: "Their best defense would be that they were fully in compliance with Federal Aviation Regulations [or FARs], but this is a highly unusual event.
"In nearly 700 million hours of air time," Walters explains, "only twice [in plane disasters] could they not be traced to a known ignition source. The first was a 737 that blew up in the Philippines but, because that aircraft had been modified by the operator from its original design, it shouldn't be included in the list. The only other explosion with an unknown ignition source causing the explosion of the center wing tank, or CWT, is TWA 800."
But according to sources and attorneys for the families, the missile theory makes legal sense as a device to hold down the settlement. "I think they [Boeing] would try and put up a missile defense because anything else would make them liable," says Douglas Latto, an aviation attorney with Baumeister & Samuels, one of the five law firms handling the claims of the victims' families. Although he says he is unaware of Boeing lawyers even considering a missile defense, he could not rule it out as a possible legal tactic and, perhaps, one already subtly raised in motions on file with the New York court.
Meanwhile, the investigation is riddled with evidentiary holes -- enough, in fact, that the Senate Judiciary Committee is planning hearings this year to look into some of the problems that surrounded the $20 million federal investigation.
Among the more troubling issues that have fueled a large number of conspiracy theories and may add credence to Boeing's possible defense are the inconsistencies in the Navy's accounts of the location of their vessels in the area at the time of the disaster, and whether exercises were taking place off the coast of Long Island on the evening of the crash.
Very early in the investigation it was learned that live-fire exercises were scheduled for the week of July 15-21 in the Narragansett Bay Operating Area, or NBOA, 80 to 100 miles north of the crash site. Despite a Local Notice to Mariners that was issued by the U.S. Coast Guard cautioning about these exercises, Navy officials subsequently claimed that no tests were conducted on those dates in that area.
The Navy Department had in December 1996 explained the purpose of a nearby Orion aircraft's mission as follows: "The P-3 dropped sonobuoys during the training portion of the flight; sonobuoys gravity dropped; all sonobuoys accounted for."
In February 1997, the Department of Defense general counsel said "the closest U.S. Navy vessel at the time of the crash was the USS Normandy ... 185 nautical miles from the crash site," and that the "VP-26 P-3C (P-3 Orion aircraft) was flying on a routine training flight approximately 55 miles southeast of the site."
Nearly six months after the general counsel's office explained that the USS Normandy was the "closest" vessel to the crash site, the story changed. In June 1997, the general counsel's office reported that "the Navy has confirmed that there were no submarines in the vicinity of the TWA Flight 800 crash site at the time of the crash. Only two submarines were operating north of the Virginia Capes Operating Areas at the time. These submarines were operating approximately 107 and 138 miles from the crash site."
But the same June report also upgraded the P-3 from a "routine" training flight. Now it "was en route to operations with the USS Trepang, the submarine that was approximately 107 miles from the crash site." Despite the earlier December statement that the P-3 had "dropped sonobuoys," the Navy backpedaled, reporting "the P-3 had not released or deployed any sonobuoys." If the two submarines were 107 and 138 miles from the crash site, the USS Normandy was not the "closest" vessel.
Today the U.S. Navy no longer claims the Normandy was the "closest" vessel, is mum about the location of any submarines and avoids any mention of the P-3's mission. Some are troubled that, nearly two-and-a-half years after the tragedy, the same Navy that controlled the salvage operation of the Flight 800 wreckage has been unable to provide consistent information about its assets in the area and the nature of their exercises on the night of the tragedy.
And, despite news accounts saying that all the families of the victims accept the FBI and NTSB conclusion that the destruction of the 747 was caused by a mechanical failure, some people, including Don and Donna Nibert, have serious doubts.
It was late in the evening of July 17, 1996, when the Niberts learned from TV news broadcasts that the flight carrying their 16-year-old daughter, Cheryl, to Paris had exploded over the Atlantic. Unlike most of the families who lost loved ones on the doomed flight, the Niberts long have believed that the aircraft was downed by a missile. Within two days of the crash, Don Nibert had raised the issue of military involvement with members of the Secret Service and also the former head of the FBI's New York office, James Kallstrom, who in an effort to comfort Nibert told him, "The Navy assures me that all their missiles are accounted for."
Nibert continued to press for answers to his concerns and ultimately felt shunned by the FBI's lead investigator. "Kallstrom wouldn't talk to me directly after we had an exchange about the military having lied about other matters," Nibert says. Just before Christmas last year, the Niberts began to look for answers outside of official government sources.
"I was wondering why I hadn't heard from anyone" was the response Nibert got from Fred Meyer, a retired major of the New York Air National Guard, when he reached out to those who claim to have witnessed a missile intercept the plane. Meyer is one of hundreds of eyewitnesses to the explosion and, as a member of the Air National Guard, he assisted in the recovery efforts.
"A streak came across the sky from my left center and proceeded further to my left.... There was an explosion ... a high-velocity explosion; a fuel-tank explosion would have been a low-velocity explosion," says Meyer.
Of the 753 people believed by the FBI and the NTSB to have witnessed the fireball, 80 to 100 have described the event in great detail. But details of what many witnesses said they saw never has been made public -- which may change soon when the NTSB Witness Group releases a summary report including the original FBI FD-302s, the official forms used by the FBI to record witness statements.
In a Dec. 3, 1997, letter to James Hall, chairman of the NTSB, Kallstrom was uneasy with allowing eyewitness participation in the public hearings held in Baltimore in December 1997. "The FBI objects to the use of any of the 244 eyewitness FD-302s or summaries prepared by the NTSB in connection with this hearing ... and to calling any eyewitnesses to testify at the public hearing," Kallstrom wrote.
Furthermore, in the same letter Kallstrom expressed additional concerns about eyewitnesses: "[T]he FBI objects to the use of the CIA video at the hearing if the purpose is to examine the eyewitnesses' observations or negate the possibility that a missile caused the crash." Hall agreed to Kallstrom's requests and eyewitnesses were not invited to participate at the hearings and their statements were not made available to participants.
But to many of the eyewitnesses, regardless of what they believe they saw, the events of that July night, high up in the sky where a fireball plummeted into the Atlantic Ocean, there remains mystery. For some, there remains anger about the presentation of a CIA video used by the FBI as a public prop to explain what might have happened to TWA 800 because it doesn't accurately reflect what they say they saw.
It is this pool of doubt and concern that Boeing may tap into as it prepares defenses to explain why it should not be held liable for the tragedy. In fact, Insight has learned that since at least the spring of 1997, attorneys at Perkins Coie, Boeing's lead attorneys, have been interviewing eyewitnesses. "They wanted to know what I saw," Meyer said in a recent interview with Insight. "I gave them a list of names I had of other witnesses that they may want to interview."
Planting a theory in the minds of the jury that a missile brought down Flight 800 is not enough, however. "Boeing would have to prove it. They just can't stand up and say 'Hey, we have a theory,'" says Larry Posner, a leading commercial-litigation trial attorney. On the other hand, "The families are going to have to prove it was mechanical," Posner adds.
Calls to Boeing and its lawyers as well as plaintiffs' counsel were not returned for official comments.
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