TWA Flight 800: Reasonable Doubt?

Insight on the News, Feb 8, 1999 by Kelly Patricia O'Meara

Insight has learned the Boeing Co., in an attempt to limit its liability, may defend itself in civil litigation with the theory that the airliner was downed by a U.S. missile.

In the rough-and-tumble world of civil litigation, the almighty dollar is king. Whether in a divorce proceeding or product-liability or wrongful-death lawsuit, plaintiffs seek huge awards and defense counsels dig in to avoid or minimize the payout. So it should come as no surprise that lawyers on both sides of the multimillion-dollar lawsuit involving the destruction of TWA Flight 800 are gearing up for a knock-down-drag-out right should the case ever go to trial.

But in monitoring the behind-the-scenes negotiations between the Boeing Co. and the law firms representing families of the 230 dead from that July 17, 1996, midair explosion just east of Long Island, N.Y., Insight has uncovered a bizarre twist that shows the extent to which some defendants believe they must go to avoid huge liability judgments.

According to confidential sources, Boeing is considering whether to spring a stunning legal tactic in its defense -- one that greatly is upsetting some of the families mourning the loss of loved ones. Based on interviews and secret corporate documents, Insight has discovered that if the civil case goes to trial the legal team representing the giant airplane manufacturer may invoke a missile theory to try to absolve Boeing of liability.

Moreover, it has been learned, Boeing's legal team already has raised the missile claim as a tool to chip away at the resolve and ultimate financial demands of the victims' families, hoping to reduce settlements by half.

"A this point, Boeing is seeking a 50 percent discount on each case because of its belief that a jury will conclude a missile downed Flight 800," declares one of the secret legal memos obtained by Insight. As a well-placed source explains: "Boeing attorneys will try to plant reasonable doubt and make a jury believe that a missile downed TWA 800."

That Boeing would engage in such a ploy has shocked the families and their lawyers, most of whom have come to agree with the consensus conclusion by the FBI and the National Transportation Safety Board, or NTSB, that Flight 800 was downed by an explosion in the plane's center fuel tank caused by mechanical failure and not by a missile fired either accidentally by elements of the U.S. military, which were scheduled to conduct air/sea training exercises nearby, or by terrorists with a grudge against the United States.

However, according to Insight's sources, Boeing's lawyers believe that members of any jury drawn from New York would walk into court with the preconceived notion that it could have been a missile that blew Flight 800 out of the sky. They are convinced that in the absence of proof-positive that mechanical failure was at fault, it would not take much to get a jury to consider the possibility that a missile downed the flight.

Jim Walters, vice chairman of the Airline Pilots Association, or ALPA, Accident Investigation Board, finds it hard to believe Boeing could have any evidence that a missile was involved. "Boeing has signed off on -- agreed with -- all or most of the field notes during the investigation," he says, adding: "Their best defense would be that they were fully in compliance with Federal Aviation Regulations [or FARs], but this is a highly unusual event.

"In nearly 700 million hours of air time" Walters explains, "only twice [in plane disasters] could they not be traced to a known ignition source. The first was a 737 that blew up in the Philippines but, because that aircraft had been modified by the operator from its original design, it shouldn't be included in the list. The only other explosion with an unknown ignition source causing the explosion of the center wing tank, or CWT, is TWA 800."

But according to sources and attorneys for the families, the missile theory makes legal sense as a device to hold down the settlement. "I think they [Boeing] would try and put up a missile defense because anything else would make them liable" says Douglas Latto, an aviation attorney with Baumeister & Samuels, one of the five law firms handling the claims of the victims' families. Although he says he is unaware of Boeing lawyers even considering a missile defense, he could not rule it out as a possible legal tactic and, perhaps, one already subtly raised in motions on file with the New York court.

Meanwhile, the investigation is riddled with evidentiary holes -- enough, in fact, that the Senate Judiciary Committee is planning hearings this year to look into some of the problems that surrounded the $20 million federal investigation.

Among the more troubling issues that have fueled a large number of conspiracy theories and may add credence to Boeing's possible defense are the inconsistencies in the Navy's accounts of the location of their vessels in the area at the time of the disaster, and whether exercises were taking place off the coast of Long Island on the evening of the crash.