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Illinois Encourages Foreign Aviation Disaster Plaintiffs to File in Cook County

The welcome mat in front of the Cook County courthouse may have been replaced with a red carpet. The Illinois Appellate Court, in the unpublished opinion Arik v. Boeing, has again permitted litigation of an airline crash involving a foreign airline, on foreign soil, with foreign victims, to proceed in Chicago.

On November 30, 2007, Atlasjet Flight 4203 crashed in Turkey, killing all 57 aboard. Representatives of 32 of the decedents brought suit in Cook County against Boeing and McDonnell Douglas as manufacturer of the MD-83, and Honeywell as manufacturer of the plane’s ground proximity warning system. A fourth defendant, represented by SmithAmundsen Aerospace, secured an early personal jurisdiction dismissal. The remaining defendants moved to dismiss under forum non conveniens, which allows a court to dismiss a case, even when jurisdiction is proper, if trial in another forum would be more convenient. They argued in favor of Turkey, because that was where the accident occurred, where Turkish authorities investigated, where the airline and airplane’s owner were located, and where most of the decedents had lived. Alternatively, the defendants argued that Washington was more convenient because the warning system was manufactured there and it is closer to California, where the MD-83 was manufactured. The trial court determined the various “private factors” and “public factors” that are traditionally considered in the forum non conveniens analysis did not strongly favor transfer. The appellate court, showing deference to the trial court’s discretion, affirmed.

The appellate court reasoned that transfer to Turkey was inappropriate because all three defendants were U.S. corporations (two in Cook County), the evidence related to the design and manufacture of the airplane and the warning system was in the U.S., and some of the evidence related to the crash investigation was in the U.S. by virtue of the NTSB’s and defendants’ cooperation with Turkish authorities. Although the court acknowledged that much of the evidence pertaining to the investigation and damages was in Turkey, it stated that where the evidence is spread throughout multiple forums, no one forum is more convenient. The court also found that public interest factors did not favor transfer, as product liability actions have international implications, and Americans have just as much interest in the safety of the products it produces and exports as Turks. The involvement of the defendants and the NTSB in the Turkish investigation confirmed for the court the U.S.’s strong interest in the litigation.

This opinion is not a surprise, given Illinois courts’ demonstrated willingness to hear cases arising out of foreign airplane crashes (see Ellis v. AAR Parts Trading, Inc. and Vivas v. Boeing). However, Arik sets a new low water mark for those seeking Cook County venue. Still, all hope is not lost. Trial courts are endowed with wide discretion in deciding forum non conveniens motions, so an attempt at persuading the trial judge may be worthwhile (though plaintiffs’ attorneys have demonstrated savvy in orchestrating which judge will hear such motions). Additionally, the Illinois Supreme Court has yet to speak to the issue of forum non conveniens for foreign air crashes, and may act to stem the tide of these lawsuits. Removal to the federal court, where forum non conveniens remains a strong basis for dismissal, may be an option. And non-Illinois defendants may be able to make a successful argument for personal jurisdiction dismissal, as SmithAmundsen Aerospace did for one of the initial defendants in the Arik case.

Alan Farkas, co-chair of SmithAmundsen Aerospace, recently published two articles that touch on the issues raised in Arik: "Cramming Cases into Existing Tests" in the Journal of the ABA Section of Litigation and "Trimming the Claws of the Internet's Jurisdictional Reach" in the Tort Trial & Insurance Practice Law Journal."