CHICAGO (LN) — Boeing moved Tuesday for judgment as a matter of law to strike damages for pain, suffering, and emotional distress in the Ethiopian Airlines Flight ET 302 crash litigation, arguing plaintiffs produced no evidence that victim Samya Stumo suffered a physical injury hit the ground.
The motion, filed in the Northern District of Illinois, asks Judge Jorge L. Alonso to rule that Stumo’s beneficiaries cannot recover for grief, sorrow, and mental suffering under Massachusetts law, which Boeing maintains should govern compensatory damages in the case.
Boeing argues that under both Illinois and Massachusetts law, damages for a decedent’s pain and suffering are recoverable only when caused by a physical injury before death. The company contends that plaintiffs failed to produce sufficient evidence for a jury to conclude Stumo suffered a physical injury prior to the crash.
The motion cites testimony from three expert witnesses—Charles Pereira, Captain Vickie Norton, and Lieutenant Colonel Troy Faaborg—none of whom testified that Stumo was physically injured before impact.
Pereira confirmed on cross-examination that he was not offering an opinion that any passenger experienced a physical injury prior to ground impact, according to the motion. Norton similarly stated she was not offering an opinion about pre-impact injuries to passengers at any point during the flight.
Faaborg’s injury opinions were largely excluded under Rule 702, though the court allowed testimony on discrete physiological effects that did not cross the line into injury, including fluid shifting and slight elongation of the spine.
Boeing’s expert Dr. Rawson Wood testified that such physiological effects are common to all passengers on any commercial flight and that it is unlikely any seatbelted passenger on ET 302 experienced physical injury prior to ground impact, which resulted in instantaneous death, according to the motion.
The motion notes that even if jurors could infer a physical injury occurred, Massachusetts law requires that pain and suffering commence with the impact of the fatal injury. The fatal injury here occurred when the plane impacted the ground, resulting in instantaneous death, with no evidence suggesting Stumo experienced conscious pain in the milliseconds between impact and death.
Under Illinois law, the motion argues, emotional distress must be caused by bodily injury. Pre-impact fright and terror has been held non-actionable under the Illinois Survival Act, according to the filing.
Boeing also seeks judgment on damages for beneficiaries’ grief, sorrow, and mental suffering, arguing that Massachusetts law does not allow such recovery. Plaintiffs had previously conceded this point, and the court had recognized it as undisputed in prior rulings.
The motion follows Boeing’s earlier choice-of-law motion, which the court denied, choosing to apply Illinois law rather than Massachusetts law. However, Boeing maintains its position that compensatory damages should be governed by Massachusetts law.