Li v. The Boeing Company

Filing 48

Memorandum Opinion and Order Signed by the Honorable Harry D. Leinenweber on 4/11/2014:Mailed notice(wp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JUNHONG LU, as Mother and Next
Friend of SHEN HAOCHEN, a
Minor,

Case No. 13 C 7418
Related to
Case Nos. 13 C 7421;
13 C 7422; 13 C 7424;
13 C 7428; 13 C 7432;
13 C 7434

Plaintiff,
v.

Hon. Harry D. Leinenweber

THE BOEING COMPANY,
Defendant.

MEMORANDUM OPINION AND ORDER
These

cases

are

before

the

Plaintiffs’ Motions to Reconsider.

Court

for

consideration

of

In seven of these cases, the

Court issued a Memorandum Opinion and Order on December 16, 2013
that granted Plaintiffs’ Motions to Remand.

Defendant Boeing

Company has asked the Court to reconsider that ruling.

After

considering the evidence submitted by the parties, the Court
concludes that it lacks jurisdiction to hear these cases.

For the

reasons stated herein, the Motions to Reconsider are denied.
The rest of these cases were filed after the original ruling
was issued, and the Motions to Remand are pending.
have

stipulated

that

all

of

these

cases

The parties

involve

the

same

jurisdictional issues, and that except for one potential issue
related to the time when evidence became available, all Plaintiffs
are

situated

similarly.

Because

the

Court

resolves

the

jurisdictional issue on the evidence presented, this ruling applies
to all Plaintiffs.

The Court will enter a separate order in those

cases that grants the remand motions for the reasons discussed in
this Opinion and the Court’s December 16, 2013 Opinion.
I.
These

cases

arise

out

BACKGROUND
of

the

crash

of

Asiana

Airlines

Flight 214 into the seawall at San Francisco International Airport
on July 6, 2013.

At the end of the flight, the airplane was flying

over the waters of the San Francisco Bay toward runway 28L, where
it was due to land.
seawall.

Runway 28L is separated from the bay by a

The airplane’s approach was too low and too slow, and

just as the airplane reached the runway, the rear landing gear and
tail struck the seawall and broke off.

The plane skidded, out of

control, along the runway.
Plaintiffs allege that the passengers and crew suffered a
variety of injuries. Several flight attendants were hurt when they
were thrown – still in their seats – from the plane onto the
runway.

The emergency evacuation slides deployed inside the

aircraft and pinned some of the passengers in their seats.

Some

seatbelts jammed, which required flight attendants and rescue
workers to use knives to free the trapped passengers.

Many of the

oxygen masks failed to deploy, which left those passengers stuck
inside the smoke-filled plane with limited available oxygen.

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Several passengers filed tort claims against Defendant Boeing,
the airplane’s manufacturer, in Illinois state court.

Defendant

removed the cases to this Court, asserting both admiralty and
federal officer jurisdiction.

Plaintiffs filed Motions to Remand,

and the cases were consolidated so that the Motions could be
considered together.

On December 16, 2013, the Court issued a

Memorandum Opinion and Order that granted the remand motions after
finding
lacking.

that

admiralty

ECF No. 22.

and

federal

officer

jurisdiction

were

The Court lacked admiralty jurisdiction

because Plaintiffs’ injuries neither occurred on water nor became
inevitable over water: “[t]he passengers on Flight 214 never faced
inevitable injury, and thus their tort was consummated when the
airplane struck the terrain.”

ECF No. 22 at 7.

Federal officer

jurisdiction was lacking because “Plaintiffs have not challenged
any of [Defendant’s] actions taken under color of law.”
at

20.

Defendant

has

asked

the

Court

to

ECF No. 22

reconsider

its

jurisdictional holdings.
Defendant points to evidence (the parties dispute whether the
evidence is “new”) that purports to show that the crash became
inevitable while the plane was still over water.

This evidence

includes measurements of the airplane’s precise altitude, speed,
and pitch, as well as a recording of cockpit audio from the moments
leading up to the crash.

Seventeen seconds before the plane hit

the seawall, one pilot said “it’s low.” About eight seconds before

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impact, the same pilot said “speed.”

At that point, the engine

thrust levers were at the idle position, and one of the pilots
moved the levers to full throttle.

Three seconds before impact,

the pilot said “go around,” meaning abort the landing by applying
full

power

to

the

engines

attempting to land again.

and

climbing

in

altitude

before

At that time, the plane was 35 feet

above ground level, moving at 103 knots, which was 34 knots slower
than the correct approach speed.

Two seconds before impact, the

pilots attempted to control the airplane’s pitch, and the plane
sped up as the engines responded to the increased thrust.

Despite

these recovery maneuvers, the plane crashed onto the runway after
its rear landing gear got caught approximately five feet below the
top of the seawall.
In addition to this flight data, Defendant has submitted
derivative evidence, including simulations of how the airplane
might have responded to other possible last minute adjustments.
The National Transportation Safety Board Aircraft Performance Group
(the “NTSB Group”) examined what would have been required for the
airplane to safely “go around.”

The Group concluded that

The simulation results indicated that the
[airplane] had adequate performance capability
to accomplish a go-around initiated no later
than 11 to 12 seconds prior to ground impact
(depending on technique), assuming a minimum
aft fuselage clearance during the maneuver of
30 feet above ground level (AGL).
For
reference purposes, the accident flight crew
initiated a go-around by advancing the

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throttles
impact.

about 7

seconds

prior

to

ground

ECF No. 37, Ex. A-1, at 2.
Defendant has also submitted commentary on the evidence, in
the form of declarations from aeronautical engineers and other
experts.

From the NTSB Group’s conclusion, Defendant’s air safety

investigation

“Associate

Technical

Fellow”

opined

that

“the

accident became inevitable while the accident aircraft was still
over water on approach to San Francisco International Airport.”
ECF No. 37, Ex. A, at ¶ 10.

Defendant’s “Technical Lead Engineer”

for the class of airplane at issue explains in his declaration that
“[t]he pilots were using all available pitch control and engine
control to arrest their descent and avoid contact with the ground
or water.”

ECF No. 42-1 at ¶ 11.

Based on his review of the data,

the same engineer concluded that “the airplane’s speed and altitude
were so low that recovery of the airplane was impossible and a
crash was inevitable.”

ECF No. 42-1 at ¶ 3.

Defendant also relied on the declaration of John Hansman
(“Hansman”), a Professor of Aeronautics and Astronautics.
analyzed the

flight

data

and

explained

that the

Hansman

flight

crew

initiated the “maximum performance escape maneuver” at 2.1 seconds
prior to impact, while the airplane was still over the Bay.
ECF No. 37, Ex. B, at ¶ 24.

Hansman noted that the “maximum

performance escape maneuver was not successful” – meaning that the
crash happened despite the fact that, at that time, the pilots
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could not have added more thrust or done any more to avoid the
crash.

Id.

From this evidence, Hansman concluded that “the

accident was inevitable at least 2.1 seconds prior to impact when
the aircraft was fully over water.”
II.

Id.

ANALYSIS

A motion to reconsider is not a vehicle for rearguing motions
decided previously.
(7th

Cir.

2000).

Oto v. Metro. Life Ins. Co., 224 F.3d 601, 606
To

prevail,

a

movant

must

present

newly

discovered evidence or show manifest errors of law or fact.

Ahmed

v. Ashcroft, 388 F.3d 247, 249 (7th Cir. 2004).
A.

Admiralty Jurisdiction
1.

Legal Standard

A party asserting federal admiralty jurisdiction must satisfy
a “location” requirement by showing that the tort either occurred
on navigable water or was caused by a vessel on navigable water.
Grubhart v. Great Lakes, 513 U.S. 527, 534 (1995).
tort

occurs

when

the

injury

is

sustained,

Generally, a

and

admiralty

jurisdiction hinges on the victim’s location at that time.

Minnie

v. Port Huron Terminal Co., 295 U.S. 647, 648 (1935); T. Smith &
Son v. Taylor, 276 U.S. 179, 182 (1928).
In some circumstances, courts have determined that a tort
“occurred” before the actual harmful impact, at the point when
injury became inevitable.

In re Air Crash at Belle Harbor, New

York, MDL 1448, 2006 WL 1288298, at *12 (S.D.N.Y. May 9, 2006).
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In

Belle Harbor, for example, the tort occurred when, several minutes
after takeoff while the airplane was at an altitude of 2,500 feet,
the airplane’s vertical stabilizer separated from the plane, which
left it incapable of flight and certain to crash and kill everyone
on board.

Id.

In another case, the tort occurred when the

aircraft “sustained a critical loss of tail rotor control” that
rendered it incapable of landing safely. Brown v. Eurocopter S.A.,
38 F.Supp.2d 515, 516-18 (S.D. Tex. 1999).
Defendant acknowledges that the airplane crashed into land.
Thus, to establish that the tort occurred over water, Defendant
must show that, at some point while the airplane was over water,
the passengers faced certain injury.
It bears emphasizing that the inevitability rule applies where
injury is inevitable, not simply where a crash is inevitable.
Because this Court viewed neither the crash nor any resulting
injuries as inevitable, the Court’s December 16, 2013 Opinion did
not always distinguish between the “crash,” the “injury,” the
“tort,” and the “accident.”

And in cases such as Belle Harbor and

The Strabo, where the falling victims faced certain harm, there was
no difference between the “crash” and the “injury.”

Belle Harbor,

2006 WL 1288298, at *12; The Strabo, 98 F. 998, 999 (2d Cir. 1900).
Thus, the nuances of “crash” versus “injury” did not affect the
Court’s analysis and did not need to be parsed.

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But the Court made clear that its focus was the point of
injury: the Opinion explained that “passengers on Flight 214 never
faced inevitable injury, and thus their tort was consummated when
the airplane struck the terrain.”

ECF No. 22 at 7.

The Court’s

analysis of relevant precedent focused similarly on the fact that
torts were considered complete when injury was certain. ECF No. 22
at 6 (quoting Belle Harbor, 2006 WL 1288298, at *12 (where, from
the moment the airplane lost its vertical stabilizer, “the deaths
of all those aboard the Aircraft were inevitable”)); ECF No. 22
at 7 (quoting The Strabo, 98 F. at 999 (where the victim, thrown
from a ship, “was subjected to conditions inevitably resulting in
physical injury, wherever he finally struck”)). Thus, in order for
the Court to determine that a tort was complete before the injury
was sustained, the Court must be able to fix the point at which
injury, not just a crash, was inevitable.
2.

Analysis

Defendant’s Motion is supplemented by evidence that shows that
the pilots recognized at least seventeen seconds before impact that
the airplane was too low.

About eight seconds before impact, the

pilots began adjusting their approach by moving the engine thrust
levers from idle to full throttle.

Three seconds before impact,

when the plane was 35 feet above ground level, moving at 103 knots,
the pilot wanted to abort the landing and go around.

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Two seconds

before impact, the plane sped up as the engines responded to the
increased thrust.
This evidence reveals that, in the moments leading up to the
crash, the airplane responded to the flight crew’s efforts to avoid
a crash.

One of the pilots increased the power to the engines, and

the increased thrust caused the airplane to gain speed before it
crashed.

In the last three seconds before impact, the airplane

descended roughly 40 feet: it went from 35 feet above ground level
to the point five feet below the runway where the landing gear
struck the seawall.

There is no indication that the airplane was

certain to descend 40 more feet, not 35 feet or fewer, given the
increased engine thrust and the pilots’ efforts to arrest the
plane’s descent.

Because five more feet might have been enough to

avoid injuring the passengers, any uncertainty over how much speed
and lift could be gained creates uncertainty over whether the plane
would crash at all.
It is also instructive that the pilots spent the flight’s last
moments maneuvering in a last-minute attempt to avoid a crash, not
bracing for certain impact.

The actions of the flight crew,

including saying “go around” just three seconds before impact,
indicate a subjective belief that the airplane was not certain to
crash.

This evidence shows that, in the final seconds of the

flight, the airplane was responding to pilot controls and the
pilots did not know whether the engines would respond with enough

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thrust to lift the plane just a few more feet and thereby avoid the
crash entirely.
Defendant’s employees and experts viewed this evidence and the
simulations

based

on

it

to

conclude

that

the

inevitable at least a few seconds before impact.

accident

was

But the NTSB

Group’s simulations operated on the premise that the airplane
needed 30 feet of clearance for a safe go-around. Defendant offers
no reason why 30 is the magic number, or why 10 or fewer feet of
clearance would not have given the plane enough space to avoid
injuring the passengers.

In fact, if the airplane had just a few

more feet of space, the pilots could have performed a so-called
“touch-and-go landing,” where the wheels touch pavement briefly
before the plane takes off again.

This accident was the result of

the landing gear striking the seawall five feet below ground level,
not the crew’s failure to execute a go-around with 30 feet of extra
space.

Defendant’s reliance on an arbitrary margin for error

renders those conclusions unhelpful.
Defendant’s evidence and supporting declarations suffer from
another

infirmity:

their

reliance

on

hindsight.

Defendant’s

conclusion that the crash was inevitable rests on two premises:
(1) the crash happened, and (2) in the seconds before impact, there
is nothing more that the pilots could have done to avert the crash.
This chain of reasoning relies on a fallacy, sometimes called
retrospective determinism, where the conclusion or end result is

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assumed.

Defendant’s evidence does not speak to the chance that

the engines would provide enough thrust in the last two seconds
before impact to lift the plane five feet – the evidence just takes
as established that they would not.

That is, Defendant’s evidence

works backwards from the crash, it does not predict the crash or
prove that the crash was the only possible outcome.

Flight 214

nearly reached the runway, and there is no evidence that the pilots
knew then, or that any experts could predict now if given the
flight data up to that point but not the end result, that the
engines would not respond with enough thrust to lift the plane a
few more feet and avoid a crash.
Defendant would have the Court view the flight frame by frame
for the seconds leading up to the crash, with each moment an
opportunity to say that the crash was inevitable so the tort was
already

complete.

Neither

the

Belle

Harbor

court

nor

the

Eurocopter court had to go so far to find that the injury occurred
before the actual harmful impact.

Rather, those courts determined

that the aircraft in their case was doomed to crash and injure all
passengers because of some failure or circumstances that could be
linked definitively to the aircraft crashing. That is, an aircraft
that has lost its vertical stabilizer and engines (as in Belle
Harbor) or sustained a critical loss of tail rotor control (as in
Eurocopter) is sure to crash and injure its passengers, or at least
so those courts found.

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A clearer understanding of the background law helps illuminate
why it is improper for the Court to work backwards from the crash
to find some point at which the crash can no longer be avoided.
Recall that admiralty jurisdiction depends on where the tort
occurs, not where the victim ends up.

The Strabo, 98 F. at 1000

(“It is not of vital importance to the admiralty jurisdiction
whether the injury culminated on the [land] or in the water.”); see
also, ECF No. 22 at 4 (comparing Taylor, 276 U.S. 179, and Minnie,
295 U.S. 647).

Thus, courts endeavor to avoid basing admiralty

jurisdiction on the fortuity of whether an airplane happens to end
up in land or water.

Executive Jet Aviation, Inc. v. City of

Cleveland, Ohio, 409 U.S. 249, 267 (1972) (explaining that it would
be unacceptable to “make jurisdiction depend on where the plane
ended up – a circumstance that could be wholly fortuitous and
completely unrelated to the tort itself”).
Confusion arises because the party seeking to invoke federal
admiralty jurisdiction still must satisfy the locality requirement,
so it does matter where the tort occurs.
534.

Grubhart, 513 U.S. at

Of course, as noted by the Court in Executive Jet, the

location of the tort is also subject to chance.
U.S. at 267.

Executive Jet, 409

But precedent dictates that admiralty jurisdiction

depends on the victim’s location when the tort occurs, regardless
of whether that location is the result of nothing more than chance.
Thus the “fortuity” that courts are able to avoid is the fortuity
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of where the victim ends up, not the fortuity of where the tort
occurs.
Consistent with this principle, the court in Belle Harbor
avoided basing its jurisdiction on the fortuity of whether the
doomed airplane happened to end up in land or water. Belle Harbor,
2006 WL 1288298, at *12.

But this is not a case like Belle Harbor

in which the airplane was certain to crash and it was only a matter
of where.

Rather, the evidence shows that the issue in this case

was whether the airplane would land safely or fly into the seawall.
Defendant’s “Technical Lead Engineer” declared that “there was
nothing further the crew could do to prevent the airplane from
hitting the seawall.”
conclusion

was

ECF No. 42-1 at ¶ 12.

dubious

for

the

reasons

Even though that

discussed

above,

the

statement shows nonetheless that the question in this case was
whether the airplane would crash into the seawall or whether it
would land safely – there is no indication that crashing into water
was at all likely.

And this makes sense:

it is reasonable to

assume that the pilots reacted to their low, slow approach in the
last seconds before impact because that is when they realized that
something had to be done.

If the airplane had been in worse shape

– such that it might have crashed in the water, even farther from
the beginning of the runway – the pilots might have realized their
peril earlier and reacted sooner, thereby avoiding the accident
completely.

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If a plane is certain to crash into land, then there is no
fortuity

of

“where

the

plane

ends

up”

to

be

avoided.

The

inevitability standard avoids basing federal jurisdiction on the
fortuity of whether a doomed victim – who is certain to face injury
regardless of where she lands – happened to crash into water or
land. Belle Harbor, 2006 WL 1288298, at *12 (establishing location
based on the airplane’s location when injury became inevitable,
because “determining jurisdiction based on the location of the
crash site would lead to unacceptably anomalous results”).

The

Belle Harbor court used the term “crash site” to refer to the
location where the airplane ends up, which in that case was
different than where the tort was complete.

In this case, because

the choices were either a crash into land or a safe landing, there
is no “fortuity of where the airplane ends up” to be avoided.
Thus, there is even less reason to use the inevitability rule to
find that the tort occurred at some time other than when the plane
struck the seawall.
This precedent illustrates that the inevitability standard is
not a license to work backwards from the crash to find some point
at which the crash can no longer be avoided.

It is better suited

to situations, such as in Belle Harbor and Eurocopter, where the
airplane and its passengers were truly doomed and the Court can
pinpoint the time at which the tort was complete.

Defendant’s

experts rely on the fact of the crash to work backward and conclude

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that the crash was inevitable, and thus their declarations are not
helpful.
Apart from whether the crash was inevitable, there is no
evidence that injury was inevitable.

Of course, for an airplane

that is plummeting from 2,500 feet, as in Belle Harbor, crash and
injury are one in the same, because the crash is certain to injure
if not kill everyone on board.

But in this case there is no

indication that every passenger was destined to be injured or in
fact was injured.

Flight 214 was on a controlled glide at the

runway’s edge when it crashed and skidded onto the runway.

Some

but not all passengers were pinned by inflated evacuation slides,
and some but not all passengers were stuck when their seat belts
jammed.

Some passengers were closer to emergency exits and had a

better chance of escape, while some lacked functional oxygen masks
and inhaled more smoke.

Of the three passengers killed in the

accident, one died after the being run over by a fire truck, and
another died in the hospital several days later.
¶ 17.

ECF No. 1-1 at

There is no reason to think that these injuries or deaths

were inevitable two seconds before the airplane crashed.

Thus, it

makes little sense for Defendant to argue that “passenger injury or
death

became

inevitable

ECF No. 42 at 8.

while

the

aircraft

was

over

water.”

To the contrary, it is clear that different

passengers suffered different injuries, depending on a variety of

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factors that no expert has claimed could be predicted as of two
seconds before impact.
The declarations offered in support of Defendant’s motion do
not distinguish between crash and injury.

See, e.g., ECF No. 42-1

at ¶ 12 (concluding that “there was nothing further the crew could
do to prevent the airplane from hitting the seawall”).

But for a

crash landing such as this one, where the passengers may or may not
be injured, the distinction between “injury” and “crash” matters.
Defendant’s declarations have little value because they fail to
account for this difference.
In light of the foregoing, Defendant’s renewed attempts to
analogize this case to Belle Harbor are not persuasive.

In Belle

Harbor, as the Court discussed at length in its Opinion, the
airplane’s vertical stabilizer, rudder, and engines separated inflight.

Belle Harbor, 2006 WL 1288298, at *12.

The airplane, at

that point little more than a fuselage with wings, carried all
passengers and crew with it as it plummeted from its altitude of
2,500 feet.

Id.

The court concluded that “the deaths of all those

aboard the Aircraft were inevitable.”

Id.

Here, in contrast, the

passengers were at the verge of a safe landing and missed it by
around five feet.
until the crash.

The airplane was functional and responsive up
And even once the airplane crashed, it was not

yet clear whether injuries would be sustained.

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These passengers

did not face certain injury and thus were not doomed in the same
way that the Belle Harbor passengers were.
Defendant’s evidence does not compel a factual finding that
either the crash or any resulting injuries were inevitable before
the crash itself.

As the party asserting federal jurisdiction,

Defendant has the burden of establishing that this tort occurred
while the airplane was over water.

Defendant’s evidence has not

persuaded the Court that this tort was complete before the airplane
struck the seawall, which the parties agree is land.

Therefore,

the Court lacks federal admiralty jurisdiction.
B.

Federal Officer Jurisdiction

With regard to federal officer jurisdiction, Defendant argues
that the Court failed to appreciate that the complaints include
veiled challenges to Defendant's certification of the airplane.
Defendant raised this argument previously, and just as before, has
not offered any authority for its idea that a lawsuit against an
airplane manufacturer for product liability and negligence is the
same as a suit against the manufacturer’s employees for negligent
certification.

It is true enough that the well-pleaded complaint

rule does not apply to federal officer removal, but the Court has
not relied on that rule.

Rather, the Court follows the principle

that federal officer jurisdiction exists only where the Defendant
is sued for actions taken under color of law.

See, Ruppel v. CBS

Corp., 701 F.3d 1176, 1180-81 (7th Cir. 2012). Defendant gives the

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Court

no

compelling

reason

to

reconsider

its

finding

that

Plaintiffs have not challenged any actions taken under color of
law.

Thus the Court stands by its holding that the Court lacks

federal officer jurisdiction.
III.
For

the

reasons

Reconsider is denied.

CONCLUSION

stated

herein,

Defendant’s

Motion

to

Pursuant to 28 U.S.C. § 1447 and Local

Rule 81.2, the Clerk shall transmit the certified copy of the
remand order fourteen (14) days after the entry of this order.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court
Date:4/11/2014

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