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Litigation Expert Mark Werbner Discusses MH370 Lawsuits, Evidence

Malaysian Department of Civil Aviation, Azharuddin Abdul Rahman (R) speaks to the media after a closed door meeting with relatives of passengers on board the missing Malaysia Airlines flight MH370 at a hotel in Bangi, Malaysia, April 2, 2014.
Malaysian Department of Civil Aviation, Azharuddin Abdul Rahman (R) speaks to the media after a closed door meeting with relatives of passengers on board the missing Malaysia Airlines flight MH370 at a hotel in Bangi, Malaysia, April 2, 2014.
David Byrd
Families of the passengers on board Malaysian Airlines Flight 370 have been asking for answers, but few answers are forthcoming.  Lawsuits related to the plane’s disappearance are almost certain, but until the searchers find the aircraft, any case will be difficult to file.  Mark Werbner of Sayles-Werbner in Dallas. His practice covers a broad range of law with an emphasis on complex business litigation, white-collar criminal defense, catastrophic personal injuries and wrongful death cases. He spoke with VOA’s David Byrd about what the families can do now, and what they can do next.
Japan Coast Guard's Gulfstream V aircraft flies in the search zone for debris from the missing Malaysia Airlines flight MH370, April 1, 2014 off Perth, Australia.Japan Coast Guard's Gulfstream V aircraft flies in the search zone for debris from the missing Malaysia Airlines flight MH370, April 1, 2014 off Perth, Australia.
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Japan Coast Guard's Gulfstream V aircraft flies in the search zone for debris from the missing Malaysia Airlines flight MH370, April 1, 2014 off Perth, Australia.
Japan Coast Guard's Gulfstream V aircraft flies in the search zone for debris from the missing Malaysia Airlines flight MH370, April 1, 2014 off Perth, Australia.


BYRD: What is an airline required to do for passengers in the event of a crash? What can people expect?

WERBNER: A lot of what’s done is based on the airline’s policies and they often have a team and a plan in place to address that.  Realistically how an airline responds and the things they do on a voluntary basis make a difference on how families respond to a tragedy like this.  You have seen reports, I’m sure, that some of their responses by this particular airline have generated a lot of anger and frustration by the family members. And that certainly doesn’t help when families are considering their legal options.
 
BYRD: This crash occurred, ostensibly over international waters.  Is there some kind of international law that would come into play here?

WERBNER: Yes there is.  There’s a treaty called the Montreal convention which addresses procedures and claims and limitations and burdens of proof, so there will be a treaty that will be the foundation for any actions that are brought.

BYRD: Recently there was a lawsuit filed in Cook County Circuit Court in Chicago related to his crash.  That was against Malaysia Airlines and against Boeing the manufacturer of the airplane, but that was thrown out.  What is the difficulty in a crash like this, where first of all we don’t even have the airplane yet?

WERBNER: It will really – besides tormenting the families – it will really make legal actions all the more difficult.  Aviation litigation is complicated enough; you add here the international component, the inability to locate the aircraft, it will make litigation very difficult.

BYRD: And the first – probably the first defendant in any legal case is going to be the airline itself, isn’t it?

WERBNER:  Yes. I think that when you typically are looking at causes of a loss – this one in particular – there’s the possibility there was a mechanical failure and that would point to the manufacturer – Boeing.  This circumstance certainly raises the possibility of an act of terrorism and that can take a whole different course including who the terrorists were -- if that was the cause -- who supported them, who financed them.  If it was inadequate security or the pilot’s intent to cause the crash, those things certainly would point to the airline.

BYRD: And of course, there are also several countries involved in this aircraft as well: there were Americans, there were Chinese, there were Malaysians, there were several nationalities on the plane.  So I would imagine that the aviation law in all the different countries would also make it difficult for families in those countries to either file a lawsuit or to recover damages wouldn’t it? 

WERBNER:  Well I think it will certainly make it difficult.  I’m not familiar with the laws in Malaysia or China.  That’s where most of the passengers were from.  As far as the Americans – including I know that there were families in – or at least one family in Texas – wherever they are the United States citizens would like to find a basis to bring a lawsuit in the United States if that’s what they determined to do and there’s a basis in fact and law to do that.  Here I understand that Malaysia Airlines flies from Los Angeles and that may be an important piece of information in any efforts to bring a lawsuit against the airlines in the United States.

BYRD: And the first difficult of course is finding any evidence.  It appears there have been – the Australian Navy has been taking the lead on the searching, the U.S. has sonar devices looking for the black boxes – the flight data recorders and the flight data recorders.  But they haven’t found any of that yet and so I would imagine going into a court of law – whether you are suing the airline or Boeing or a combination of those two – you’ve got to have evidence and we don’t have any of that yet.

WERBNER:  Well that’s certainly correct and proof is vital to a legal action.  It has to exist.  And it may develop over time.  It seems frustratingly difficult here and a lot of time has passed, but perhaps proof and evidence will be acquired and then that will be analyzed and could be the basis for a lawsuit.

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