Dismissal of Spanair Litigation in United States Affirmed by Ninth Circuit Court of Appeals

On August 20, 2008, a Boeing MD-82 aircraft operated by Spanair crashed on takeoff from Madrid-Barajas Airport, killing 154 people and injuring 18 others. While the injured and deceased were domiciliaries of various countries, none were United States citizens or residents. Nevertheless, some 204 plaintiffs, principally Spanish citizens, brought wrongful death and personal injury actions in various United States federal courts against the Boeing Company, the manufacturer of the aircraft, and several component manufacturers. The complaints alleged that a takeoff warning system was defective in that it failed to alert the Spanair crew as to the misconfiguation of the plane’s wing flaps and slats, failures which the plaintiffs contended caused the plane to crash, resulting in the deaths of and personal injuries to all aboard the aircraft. Significantly, plaintiffs did not sue Spanair, the operator of the aircraft. After the accident, Spanair filed for bankruptcy in Spain.

Boeing filed a forum non conveniens motion in the Central District of California (Los Angeles), arguing that the courts of Spain were an adequate alternative forum and that the private interest and public interest factors to be considered in determining where a case should be tried favored trial of the actions in Spain rather than the United States. The District Court agreed and the Circuit Court of Appeals for the Ninth Circuit, after hearing oral argument on the appeal, affirmed the dismissal by the District Court.¹

In deciding a forum non conveniens appeal, the Court of Appeals considers whether the District Court properly exercised its discretion in weighing the private interest and the public interest factors. The Ninth Circuit found that there was no abuse of discretion by the District Court.

The first inquiry in determining a forum non conveniens motion is whether there is an adequate alternative forum to the United States. Boeing agreed to litigate and defend these cases in Spain, a concession which ordinarily makes the foreign forum an adequate alternative forum. While Boeing made such a concession in this case, plaintiffs argued that Spain would not be an adequate alternative forum because the civil proceedings could be stayed during the pendency of criminal proceedings arising from the crash. However, the Court found that plaintiffs’ concern was unjustified since the criminal proceedings in Spain arising from the accident had been concluded and that issue was now moot. After finding that Spain was an alternative adequate forum, the Court then went on to the weigh the private interest and public interest factors of Gulf Oil Corp. v. Gilbert² which the courts have determined must be evaluated in determining a forum non conveniens motion.

The private interest factors to be considered include the residence of the parties and the witnesses, the forum’s convenience to the litigants, access to physical evidence and other sources of proof, whether unwilling witnesses can be compelled to testify, the cost of bringing willing witnesses to trial, the enforceability of the judgment and the catchall provision of “all other practical problems that make trial of a case easy, expeditious and inexpensive”.

The Ninth Circuit agreed that the District Court carefully considered each of these factors in granting a dismissal on forum non conveniens grounds. Plaintiffs argued that they were willing to come to the District Court in Los Angeles for a trial, and therefore, the convenience of witness was not a factor to be considered. However, the District Court noted that another relevant consideration was the cost of bringing other unwilling witnesses to trial. The District Court’s conclusion that the greater cost of proceeding in the United States favored dismissal was not an unreasonable conclusion to be reached given the evidence in the case.

Plaintiffs also argued that the District Court unfairly and improperly focused on physical evidence in Spain. They characterized such evidence as unimportant because plaintiffs agreed to stipulate to the negligence of the flight crew, leaving for litigation only the question of whether the takeoff warning system was defectively designed. That evidence, said the plaintiffs, was located in the United States, not Spain. Boeing argued that the negligence of flight crew caused the accident and that the fault of the various Spanish actors reduced the extent of its liability, if any. The District Court found that the cockpit voice recordings and the Spanish authorities’ investigation into the accident were important pieces of evidence and that the information about the crash available in Spain would be more difficult to access here than in Spain.

The public interest factors include the local interest in the lawsuit, the court’s familiarity with governing law, the burden on the judicial system and juries, court congestion and the costs of resolving a dispute which has no relation to the forum.

The Court of Appeals concluded that the District Court also correctly and carefully balanced these factors in granting the dismissal. While it conceded that California had an interest in the case since the United States was the place where the aircraft manufacturer was located, Spain had a greater interest in this matter since it was the locale of the crash site and the home of the vast majority of the decedents and injured parties.

Finally, plaintiffs argued that even if the case were dismissed to Spain, the District Court in California should retain jurisdiction to resolve discovery disputes. The Court found that discovery disputes were not unusual in complex litigation and that no showing had been made that Boeing would not fully cooperate in any discovery that was permitted under the laws of Spain. Accordingly, finding that there had been no abuse of discretion by the District Court, the Ninth Circuit affirmed the dismissal of the litigation arising from the Spanair accident on the ground of forum non conveniens. Plaintiffs now have 90 days within which to file a petition for writ of certiorari with the United States Supreme Court. It does not appear, based on the facts of the case, that a petition would be successful since the Court of Appeals’ decision is consistent with those of other Courts of Appeals interpreting forum non conveniens issues as applied to non-United States aviation accidents.

This case marks another significant victory for defendants in seeking to keep foreign air crash cases out of the United States judicial system where plaintiffs are likely to recover more favorable verdicts and larger settlements than if these cases were litigated outside the United States.


¹ Fortaner v. The Boeing Company, No. 11-56179 (9th Cir., Jan. 10, 2013).
² 330 U.S. 501, 508 (1947).