- 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
- 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
- "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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