In The Weeds

In The Weeds

‘In the Weeds’ is a phrase, an idiom; its meaning is different from its collection of words that are in the phrase. Its partial meaning is: one who is concentrating on current issues; to expand the concentration disregards all other issues. I prefer to define the phrase as the weeds are so high that if one is ‘in the weeds’, they can’t see further than a few feet in all directions; they can’t see beyond their own point of view.

It's easy to use “In the weeds” as a metaphor when describing certain lawyers, particularly (to my experience) aviation lawyers, whose focus can be so laser-focused on the job at hand that they miss other aspects of the subject being litigated. I’ve worked with lawyers for the National Transportation Safety Board (NTSB) and Federal Aviation Administration (FAA), who were great. Other lawyers, non-governmental, I’ve worked for or with, have the right approach to aviation cases, such as accidents; their goal: litigate an irresponsible manufacturer, airline, repair station, etc. Their plaintiffs often cannot bring a suit themselves. Theirs are good intentions, what I consider a noble task aimed at restitution - not revenge. Yet, the adage, “The road to hell is paved with good intentions” could apply.

It's not enough to have done right; the trick is to have right … done. For example, I refer to a successful lawsuit against an aircraft manufacturer, but the outcome was not for the right reason because the manufacturer settled to ‘make the lawsuit go away’. One may think, “Hey, it’s good, the irresponsible manufacturer paid for their failures.” But did they? What was learned from the lawsuit? How did the settlement give meaning to the accident’s lessons if everything discovered had nothing to do with the accident? Did the lawsuit prevent any future failure?

And did the lawsuit unintentionally conceal facts of the accident that should’ve come out?

To begin with, when a lawsuit is settled in order to ‘get rid of it’, this places the blame on researchers and engineers, those in research and development – R&D – the ones who designed the products that made the manufacturer successful over time. Look at the Boeing B737-MAX accidents, where Lion Air 610 (2018) and Ethiopian Airlines 302 (2019) each suffered a loss of a brand new B737-MAX in devastating tragedies. Were Boeing’s successes considered? How did Boeing’s success, through its innovations, make aviation better? Didn’t Boeing design various fighters that won World War II? Weren’t the Boeing B707, B747, and B777 successful products that made the world smaller? Did Boeing’s R&D folks really make a mistake by improving the technology or was it that Lion Air and Ethiopian Airlines failed to train their employees to the standards required to fly the B737-MAX?

The lawsuit mantra of: “Settle. We don’t want this to play out in the public domain,” is somewhat understandable since there’s no controlling the ignorant Media. Aviation journalists don’t know how to filter fact from ‘you’ve-got-to-be-kidding’ ignorance, so they end up running with anything that sells their stories, blaming a manufacturer for designs the journalist cannot possibly understand. Later, the lawsuit results in ensuring the families receive an award that will never equal their loss; it truly is a small consolation. What then? If all the lawsuit managed to secure was a cash payment from a defendant who just wanted to make the lawsuit go away, how did aviation benefit? We go from lawsuit to lawsuit to lawsuit but are never satisfied.

I had a discussion with a lawyer recently about the Lion Air and Ethiopian MAX accidents and what the lawsuits concluded. He said he’d heard that Boeing paid out in a settlement. My question was: Why? He said to avoid the lengthy, brand damaging trial, of course. I just shook my head; I’ll retire to bedlam.

Was my response to deny victim families’ right to restitution? I can’t say, because nobody heard any useful testimony, which the trial apparently never produced. The reason I shook my head was because, after reading the accident reports, I had to ask: Did the families get restitution from the right defendant?

One thing we must all not forget, a simple concept: Boeing, Airbus, like any manufacturer, makes a product. They make improvements to earlier models, up the technology, such as more fuel efficiency. Just like your new car, that Boeing product comes with extras, with design options. Lion Air and Ethiopian Airlines knew this; they ordered the MAX with eyes wide open; they wanted those design improvements that lowered fuel costs, that made the aircraft more efficient. What lawyers didn’t consider – but they should – is it was not Boeing’s responsibility to ensure Lion Air and Ethiopian Airline’s pilots and mechanics were properly trained to operate the MAX, to understand the technology. It was Lion Air and Ethiopian Airline’s responsibility to ensure their pilots knew how to control the technology.

Think about this: Are we to believe Boeing provided the two airlines with technology beyond their ability to understand? That the airlines were tricked in some way? That Boeing knew the airlines could never understand it? If that’s the case, both airlines shouldn’t fly anything more advanced than a DC-9 … the 1960s version. If that’s true, I would never fly on either airline. After all, what else can’t they do? How many MAX accidents happened inside the US? How many MAX aircraft were improperly maintained in the US? Operators, like the US major airlines, are required to have a robust training program for their pilots, flight attendants, and mechanics – and this is important – before the new aircraft arrives from the factory. How do I know? My airline was the launch customer for the MD-11; I know what goes into bringing on new equipment. I also worked for the FAA and know what those maintenance and operations manuals have in them describing training. I’m also a consultant and write those manuals.

What did we learn? Manufacturers who bow to legal pressure conceal problems. By taking the easy way out, two things happen; one – the manufacturer will lose every future lawsuit, and two – they’ll conceal their customers’ culpability … forever. That makes aviation less safe. Add incompetent accident investigators to the mix and the root cause will never see the light of day.

So, what happened with the MAX accidents? Let’s be clear – Federal Aviation Administration (FAA) and all International Civil Aviation Organization (ICAO) member states, listen up – Safety does not drive the airlines. Bean counters do.

Airlines buy high technology aircraft to save money. How does an airline save fuel? Let the aircraft fly the route. Pilots program the computer; taxi to the runway; raise the gear; retract the flaps; shut up, sit back and enjoy the ride while the plane saves bean counters money, money, money. Eventually bean counters will replace one or both pilots; they’ll save more money, money, money. How does the airline save ground time? Let the aircraft troubleshoot the systems. Mechanics do what the aircraft instructs; replace what the aircraft told them to; and sign the logbook, while the aircraft self-tests the system. This goes against all understanding of how pilots and mechanics become proficient, how they build their skills. An analogy would be Doctor Grant’s line in Jurassic Park, “The Tyrannosaur doesn’t want to be fed; he wants to hunt.” It’s the same with pilots and mechanics; they don’t want the job done for them, they want to learn the skill; figure things out; master the machine.

There’s usually one small consolation in believing our loved one’s tragic death led to improvements in safety and that is that no one will ever die under the same circumstances. That’s never true. The MAX issues, for instance, weren’t changed; the same type of tragedy can – and will – happen again, only the next time it won’t be a B737-MAX; all attention will focus on some other villain. They’ll miss coincidence and/or trend after coincidence and/or trend before they eventually sue the manufacturer that designed an aircraft that improperly trained pilots can’t fly. Or improperly trained mechanics can’t fix. A vicious cycle.

Where lawsuits are concerned, the quick path to resolution will always leave us in the weeds. There are no fast fixes; consequently, true problem solving takes time and attention to root cause. Fast tracking a lawsuit will never repair what must be done but settles on what just makes problems go away.