Boeing law firm withdraws from crash suit

By Steve Miletich
Seattle Times business reporter





Seattle law firm Perkins Coie, which has represented Boeing in airplane-crash liability cases for most of the last century, has withdrawn as Boeing's counsel in the lawsuits stemming from the crash of Alaska Airlines Flight 261.
Boeing called the move, and its hiring of a Chicago-based firm as a replacement, a routine response to a potential conflict of interest — Perkins has represented Alaska Airlines on other matters in recent years. Nevertheless, it was the talk of the legal community because Perkins Coie has been closely tied to Boeing since it drew up the airplane maker's incorporation papers in 1916.

The switch could also portend a more contentious relationship between Boeing and Alaska, one of Boeing's best customers, over how much responsibility the airline and the airplane manufacturer have for the January 2000 crash that killed 88 people.

The move frees Boeing, now headquartered in Chicago, to consider calling more attention to Alaska's role in the crash, some attorneys for the families of the victims said yesterday.

Alaska and Boeing had agreed to let Perkins represent both of them at a time the companies expected that lawsuits stemming from Flight 261 could be settled out of court.

But when that prospect dimmed and a trial date was set, Boeing decided it was necessary to ask Perkins Coie to withdraw and hand the case over to an attorney in the Los Angeles office of the Chicago firm, Sonnenschein, which has 600 lawyers throughout the world, said Liz Verdier, a Boeing spokeswoman.

"This isn't unusual. It's called a conflicts issue," Verdier said, referring to the fact Perkins would have confidential information about Boeing and Alaska.

The change of firms immediately set off a wave of reactions, particularly when lawyers for Boeing's new firm informed the families' attorneys they plan to seek a 90-day delay in the Flight 261 trial, now scheduled to start Jan. 20 in San Francisco.

"In simple English, this is an attempt at the 11th hour to delay the trial, and I don't think it will succeed," said San Francisco attorney Marc Topel, who is representing the family of a Mercer Island man killed in the crash.

Verdier said Boeing needs more time to prepare because of the change of firms. "The judge will rule on that," she said.

All 88 passengers and crew aboard Flight 261 were killed when it plunged into the Pacific Ocean off Southern California on Jan. 31, 2000, en route from Puerto Vallarta, Mexico, to San Francisco and Seattle.

Dozens of suits remain in the case, while others have settled, all but one for confidential sums.

Boeing became a defendant in the case because it acquired McDonnell Douglas, the maker of the MD-83 that crashed, in 1997.

The suits allege, among other things, that the plane's design was faulty because of the failure of its jackscrew assembly, a key flight-control mechanism that controls the tail section's horizontal stabilizer. The suits also contend that maintenance lapses by Alaska contributed to the jackscrew's failure.

Boeing and Alaska have denied the allegations but have taken different tacks in defending themselves.

Alaska, in proceedings before the National Transportation Safety Board (NTSB), which is investigating the cause of the crash, has strongly suggested that a Boeing-approved grease corroded the jackscrew.

And in a deposition given in the suits earlier this year, an Alaska official repeatedly gave answers that suggested the carrier was never told by McDonnell Douglas that the jackscrew was subject to a catastrophic failure.

Boeing has called the MD-83 a reliable aircraft, citing its long history of safe flights with no failures of a jackscrew before Flight 261.

But it has refrained from pointing a finger at Alaska, which has been one of its most reliable customers.

Top executives at Boeing made a decision early in the case to avoid any criticism of Alaska, in the hopes that settlements would avoid a trial, according to people close to the company.

In particular, these people cited the close relationship between John Kelly, the chairman of Alaska Air Group, and Alan Mulally, chief executive officer of Boeing Commercial Airplanes.

But the change of law firms indicates Boeing is reconsidering, said attorneys for the families, noting Boeing faces exposure for potentially huge punitive damages, while Alaska may only have to pay compensatory costs because of an international law that protects it against punitive damages.

Jamie Lebovitz, a Cleveland attorney representing 18 families, said the switch occurred late last week, shortly after Boeing made a massive set of discovery and deposition requests seeking information from Alaska.

"Boeing is pointing a finger at Alaska," Lebovitz said, asserting that Boeing is seeking to "establish that the crash of Alaska Airlines Flight 261 was the result of errors, omissions and misconduct by Alaska Airlines in its maintenance of the aircraft."

"Boeing is going to have to turn on Alaska now," said John Greaves, a Los Angeles attorney representing 14 families, stressing that his view was a theory.

The Perkins law firm could no longer remain on the case because it knows too much about Alaska, Greaves said.

But Frank Fleming, a New York attorney representing two Seattle sisters whose parents died in the crash, was more cautious, saying the results of the NTSB probe, expected later this year, and depositions in the suits may shape how Boeing and Alaska defend themselves. "It's not so much a matter of finger-pointing," he said.

Verdier, the Boeing spokeswoman, said, "I can't speak to the strategy that is going to occur with the new firm."

The Perkins firm, which will continue to represent Boeing on other matters, declined comment yesterday. Alaska also declined comment, as did Robert Scoular, the new lead lawyer in the case for Sonnenschein.

Lebovitz said Boeing's plan to request a trial delay should be rejected by the judge overseeing the case because Boeing and Alaska have known since early in the case about the conflict.

The request, expected to be filed soon with the court, is a "disingenuous attempt to delay the inevitable," Lebovitz said.

The families fought hard for the Jan. 20 trial date, arguing they should get their day in court before the third anniversary of the crash and before the memories of witnesses fade even more. Boeing and Alaska objected, maintaining more time should be given for settlement talks.

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