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Clerides v. Boeing Co.

July 16, 2008

CHARIS CLERIDES AND SOTEROULLA HADJIKYRIYAKOU, ESTATE OF NICOS KARAKOSTAS, PLAINTIFFS-APPELLANTS,
v.
BOEING COMPANY, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 07 C 4378-George W. Lindberg, Judge.

The opinion of the court was delivered by: Ripple, Circuit Judge

ARGUED MAY 15, 2008

Before RIPPLE, KANNE and WILLIAMS, Circuit Judges.

Following a tragic airplane crash, Charis Clerides and Soteroulla Hadjikyriyakou, personal representatives of the estate of Nicos Karakostas, brought an action against Boeing in the United States District Court for the Northern District of Illinois.*fn1 Boeing previously had moved to dismiss other actions arising out of this occurrence on the ground of forum non conveniens, contending that either Cyprus or Greece would provide a more convenient forum. The district court had granted the motion. The personal representatives of Nicos Karakostas stipulated to a forum non conveniens dismissal but reserved the right to appeal the district court's decision.*fn2 Because we believe that the district court did not abuse its discretion in granting the motion, we affirm the judgment of the district court.

I. BACKGROUND

The underlying facts are not disputed. On August 14, 2005, a 737-300 aircraft, designed and built by Boeing, was scheduled to fly from Larnaca, Cyprus to Athens, Greece as Helios Airways Flight 522. After takeoff, the aircraft failed properly to pressurize. As a result, the crew and passengers lost consciousness and asphyxiated; the plane crashed near Athens, Greece, when it ran out of fuel. Nicos Karakostas, a citizen and resident of Cyprus, was one of the passengers killed during the crash.

Helios Airways is incorporated and based in Cyprus and, at the time of the accident,*fn3 operated four aircraft on flights out of airports in Cyprus. The Cyprus Department of Civil Aviation has regulatory oversight responsibilities for Helios' operations. Helios maintains that the United States' courts lack subject matter and personal jurisdiction over it and has refused to produce voluntarily in the United States any evidence or witnesses in its possession, custody or control.

Boeing's Commercial Airplanes division is headquartered in the State of Washington. Boeing maintains in Washington custody and control of documents and witnesses relevant to the design, manufacture, certification, testing and customer support services of the 737-300 model aircraft. As a condition of the district court granting the forum non conveniens dismissal, Boeing agreed to make available in Cyprus and Greece all evidence and witnesses under its control.

After the crash, the Greek Air Accident Investigation & Aviation Safety Board ("Accident Safety Board") conducted the official accident investigation. Representatives from the Cyprus Air Accident & Events Investigation Committee and the United States National Transportation Safety Board ("NTSB") also participated. Boeing was a technical advisor to the NTSB, providing assistance as requested. The official investigation records, the individuals who conducted the investigation and autopsies and the recovered aircraft wreckage all are located in Greece. Although most of the investigative activities occurred in Greece, certain discrete activities occurred in France, Germany and the United States.

On October 10, 2006, the Accident Safety Board delivered its Final Report; the report attributed the direct causes of the accident to Helios flight crew errors. This report was turned over to the Athens criminal prosecutor, who initiated a Greek criminal investigation for homicide by intent. The Accident Safety Board found that the flight crew had failed to recognize that the aircraft's pressurization system was set to the incorrect manual position. Because the system was in manual, the aircraft did not automatically pressurize. The Final Report also found that the flight crew failed to recognize three warnings that signaled that the aircraft was not pressurizing. The Final Report concluded that human error on the part of the flight and cabin crew contributed to the failure to recognize the pressurization problems.

The Final Report identified several secondary causes of the accident, including Helios' deficiencies in organization, quality management and safety culture, and the Cyprus Department of Civil Aviation's inadequate execution of its oversight responsibilities. The Accident Safety Board also criticized Boeing's checklists, the 737's cabin altitude warning horn and Boeing's inadequate remedial response to prior pressurization incidents. After the publication of the Final Report, Helios agreed not to contest liability in lawsuits filed against it in Greece or Cyprus and to produce in Greece and Cyprus all witnesses, documents and other relevant evidence.

Cyprus also undertook investigations into the accident. Cyprus' Attorney General began a criminal investigation immediately after the accident, and the Cypriot police collected relevant documents and statements from Cypriot witnesses. The Cyprus Air Accident Committee also began an investigation. Both investigations were ongoing when this appeal was filed. To facilitate the Cypriot criminal investigation, the Cyprus Council of Ministers appointed a Commission of Inquiry. The Commission was charged with investigating the events that led to the accident. It took testimony from many witnesses and collected relevant documents, all of which are located in Cyprus.

In August 2007, the personal representatives of the estate of Nicos Karakostas sued Boeing in the Northern District of Illinois. At the time they filed suit, a number of wrongful death actions arising out of the crash already had been filed against Boeing in the United States. The Multidistrict Litigation Panel had consolidated the suits in the Northern District of Illinois for pretrial proceedings. Boeing had moved to dismiss based on forum non conveniens, contending that either Cyprus or Greece would provide a more convenient forum, and in February 2007, the district court had granted the motion. The cases related to the crash therefore already having been dismissed, the personal representatives of Nicos Karakostas entered a stipulation consenting to the forum non conveniens dismissal but reserving the right to challenge that dismissal on appeal. The plaintiffs then timely appealed.

At the time this appeal was filed, legal proceedings related to the accident were pending both in Greece and the United States. In Greece, Helios sued Boeing in the Athens Multi-member Court of First Instance, alleging that several defects in the airplane had caused the accident. Helios sought consequential damages for lost future earnings and harm to its reputation. In addition, after the district court issued its forum non conveniens dismissal in this litigation, twenty-seven wrongful death actions were filed in Greece against ...


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