Boeing On The Hook For Military Chopper Crash

     SAN FRANCISCO (CN) – In a case of first impression in the 9th Circuit, a federal judge allowed survivors of a special operations helicopter crash in Afghanistan to proceed with a product liability lawsuit against Boeing, ruling that the suit would not interfere with military operations.

     U.S. District Judge Claudia Wilken of San Francisco concluded that the liability claims against Boeing, Honeywell International and other helicopter parts manufacturers would not interfere with military operations.
     On the night of Feb. 17, 2008 an Army Special Operations Chinook helicopter crashed in the Zabul Province of Afghanistan. All 22 individuals on board the helicopter were military personnel. The crash killed eight soldiers and wounded 14 others.
     Five survivors, a survivor’s wife and the heirs to four of those killed sued the companies that designed, built, manufactured, marketed, and sold the helicopter at issue. Honeywell International moved to dismiss the suit on grounds that plaintiffs’ claims are barred by the political question doctrine. The Boeing Co. and Goodrich Pump and Engine Control Systems joined Honeywell’s motion.
     Judge Wilken denied defendants’ motion to dismiss.
      “Dismissal is appropriate under Rule 12(b)(1) when the district court lacks subject matter jurisdiction over the claim. Defendants allege that plaintiffs’ claims raise a nonjusticiable political question over which the court has no subject matter jurisdiction.
     “Plaintiffs argue that the court should dismiss their claims only if defendants establish that there are no material facts in dispute. This standard, however, cannot be applied to a political question dispute. A political question arises, by definition, when jurisdictional and substantive claims are so intertwined that the court will have to consider evidence regarding the jurisdictional issue at trial.
     “Koohi v. United States is the only 9th Circuit case that addresses the political question issue as it relates to tort claims arising from military activity. The Koohi court concluded that a negligence claim against the United States military and a strict product liability claim against the manufacturers of the military’s air defense system for injuries incurred when the Army shot down a misidentified Iranian Airbus carrying civilian passengers did not implicate a political question.
     “Defendants attempt to distinguish the instant case from Koohi by arguing that the passengers on the Chinook helicopter were all soldiers who had voluntarily assumed the risks associated with military activity. However, although the 9th Circuit held that ‘those decisions which cause injury to civilians’ are particularly reviewable, it did not state that injuries to members of the armed forces were necessarily nonjusticiable.
     “Courts in other jurisdictions have held that claims arising from injuries to soldiers are justiciable. Therefore, plaintiffs’ status as soldiers, although relevant, is not dispositive.
     “Because there are no 9th Circuit cases addressing the justiciability of soldiers’ tort claims against a military contractor, the court will consider the reasoning of other circuit and district court cases that have decided this issue. According to the majority of these cases, the key inquiry is whether a court will have to consider the wisdom of military operations and decision-making, or whether it need only consider the private contractor’s performance.
     “Several courts have been reluctant to dismiss claims at an early stage of discovery before it is certain whether inquiries into military decision-making would be necessitated by plaintiff’s claims.
     “Here, based on the current record, the court may be able to decide plaintiffs’ claims without considering military decision-making. Although evidence in the record demonstrates that there was icing and low visibility at the time of the crash, there is no evidence that military personnel ordered the aircraft to fly in unfavorable conditions, and in fact, prior to take-off two weather forecasts were obtained so that the aircraft would not fly under hazardous conditions.
     “Moreover, although the military planned the aircraft’s route, there is no evidence that this decision contributed to the crash. There is as yet no evidence in the record to suggest that the pilot’s actions were the result of inadequate training or a lack of communication.
     “At this point there is insufficient evidence in the record to demonstrate that the court will have to consider military activity in adjudicating plaintiffs’ claims.
     “For the foregoing reasons defendants’ motion to dismiss for lack of subject-matter jurisdiction is denied without prejudice.”
     Plaintiff is represented by Thomas Brandi at The Brandi Law Firm. Defendant is represented by Chung Han at Perkins Coie LLP out of Santa Monica.

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