-Caveat Lector-
Published in Washington, D.C.Vol. 15, No. 5 -- February 8, 1999
www.insightmag.com
TWA Flight 800: Reasonable Doubt? 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 fight 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.
"At 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.
Very early in the investigation it was learned that live-fire
exercises were scheduled for the week of July 15-21 in the
Narragansett Bay Operating Area, or NBOA, 80 to 100 miles north of the
crash site. Despite a Local Notice to Mariners that was issued by the
U.S. Coast Guard cautioning about these exercises, Navy officials
subsequently claimed that no tests were conducted on those dates in
that area.
The Navy Department had in December 1996 explained the purpose of a
nearby Orion aircraft's mission as follows: "The P-3 dropped sonobuoys
during the training portion of the flight; sonobuoys gravity dropped;
all sonobuoys accounted for."
In February 1997, the Department of Defense general counsel said "the
closest U.S. Navy vessel at the time of the crash was the USS Normandy
... 185 nautical miles from the crash site," and that the "VP-26 P-3C
(P-3 Orion aircraft) was flying on a routine training flight
approximately 55 miles southeast of the site."
Nearly six months after the general counsel's office explained that
the USS Normandy was the "closest" vessel to the crash site, the story
changed. In June 1997, the general counsel's office reported that "the
Navy has confirmed that there were no submarines in the vicinity of
the TWA Flight 800 crash site at the time of the crash. Only two
submarines were operating north of the Virginia Capes Operating Areas
at the time. These submarines were operating approximately 107 and 138
miles from the crash site."
But the same June report also upgraded the P-3 from a "routine"
training flight. Now it "was en route to operations with the USS
Trepang, the submarine that was approximately 107 miles from the crash
site." Despite the earlier December statement that the P-3 had
"dropped sonobuoys," the Navy backpedaled, reporting "the P-3 had not
released or deployed any sonobuoys." If the two submarines were 107
and 138 miles from the crash site, the USS Normandy was not the
"closest" vessel.
Today the U.S. Navy no longer claims the Normandy was the "closest"
vessel, is mum about the location of any submarines and avoids any
mention of the P-3's mission. Some are troubled that, nearly
two-and-a-half years after the tragedy, the same Navy that controlled
the salvage operation of the Flight 800 wreckage has been unable to
provide consistent information about its assets in the area and the
nature of their exercises on the night of the tragedy.
And, despite news accounts saying that all the families of the victims
accept the FBI and NTSB conclusion that the destruction of the 747 was
caused by a mechanical failure, some people, including Don and Donna
Nibert, have serious doubts.
It was late in the evening of July 17, 1996, when the Niberts learned
from TV news broadcasts that the flight carrying their 16-year-old
daughter, Cheryl, to Paris had exploded over the Atlantic. Unlike most
of the families who lost loved ones on the doomed flight, the Niberts
long have believed that the aircraft was downed by a missile. Within
two days of the crash, Don Nibert had raised the issue of military
involvement with members of the Secret Service and also the former
head of the FBI's New York office, James Kallstrom, who in an effort
to comfort Nibert told him, "The Navy assures me that all their
missiles are accounted for."
Nibert continued to press for answers to his concerns and ultimately
felt shunned by the FBI's lead investigator. "Kallstrom wouldn't talk
to me directly after we had an exchange about the military having lied
about other matters," Nibert says. Just before Christmas last year,
the Niberts began to look for answers outside of official government
sources.
"I was wondering why I hadn't heard from anyone" was the response
Nibert got from Fred Meyer, a retired major of the New York Air
National Guard, when he reached out to those who claim to have
witnessed a missile intercept the plane. Meyer is one of hundreds of
eyewitnesses to the explosion and, as a member of the Air National
Guard, he assisted in the recovery efforts.
"A streak came across the sky from my left center and proceeded
further to my left.... There was an explosion ... a high-velocity
explosion; a fuel-tank explosion would have been a low-velocity
explosion," says Meyer.
Of the 753 people believed by the FBI and the NTSB to have witnessed
the fireball, 80 to 100 have described the event in great detail. But
details of what many witnesses said they saw never has been made
public -- which may change soon when the NTSB Witness Group releases a
summary report including the original FBI FD-302s, the official forms
used by the FBI to record witness statements.
In a Dec. 3, 1997, letter to James Hall, chairman of the NTSB,
Kallstrom was uneasy with allowing eyewitness participation in the
public hearings held in Baltimore in December 1997. "The FBI objects
to the use of any of the 244 eyewitness FD-302s or summaries prepared
by the NTSB in connection with this hearing ... and to calling any
eyewitnesses to testify at the public hearing," Kallstrom wrote.
Furthermore, in the same letter Kallstrom expressed additional
concerns about eyewitnesses: "[T]he FBI objects to the use of the CIA
video at the hearing if the purpose is to examine the eyewitnesses'
observations or negate the possibility that a missile caused the
crash." Hall agreed to Kallstrom's requests and eyewitnesses were not
invited to participate at the hearings and their statements were not
made available to participants.
But to many of the eyewitnesses, regardless of what they believe they
saw, the events of that July night, high up in the sky where a
fireball plummeted into the Atlantic Ocean, there remains mystery. For
some, there remains anger about the presentation of a CIA video used
by the FBI as a public prop to explain what might have happened to TWA
800 because it doesn't accurately reflect what they say they saw.
It is this pool of doubt and concern that Boeing may tap into as it
prepares defenses to explain why it should not be held liable for the
tragedy. In fact, Insight has learned that since at least the spring
of 1997, attorneys at Perkins Coie, Boeing's lead attorneys, have been
interviewing eyewitnesses. "They wanted to know what I saw," Meyer
said in a recent interview with Insight. "I gave them a list of names
I had of other witnesses that they may want to interview."
Planting a theory in the minds of the jury that a missile brought down
Flight 800 is not enough, however. "Boeing would have to prove it.
They just can't stand up and say 'Hey, we have a theory,'" says Larry
Posner, a leading commercial-litigation trial attorney. On the other
hand, "The families are going to have to prove it was mechanical,"
Posner adds.
Calls to Boeing and its lawyers as well as plaintiffs' counsel were
not returned for official comments.
Copyright © 1999 News World Communications, Inc.
---------
"Ultimately, our objective is to welcome the Soviet Union back into
the world order. Perhaps the world order of the future will truly be a
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