Tim Tate

HOW SAFE IS YOUR PLANE ?

On Tuesday next week (September 29) the United States Court of Appeals (Tenth Circuit) will hear a case which has huge importance not only for the safety of anyone who gets on a commercial aircraft, but for consumers of products of all Government-regulated industries.  It will determine, just one week after the Volkswagen scandal surfaced, the extent to which consumers of almost any (theoretically) regulated product or service are forced to place their entire trust in those government regulators – even when their actions suggest that trust is not deserved.

The case to be heard in Denver on Tuesday bears an unusual-sounding name: United States of America ex. rel. Taylor Smith, Jeannine Prewitt and James Ailes v. The Boeing Company and Ducommun Inc. Nor is it solely the title which makes this law suit extraordinary.

The hearing will be the culmination of a 10-year battle by three very brave whistleblowers (and their lawyers) to expose potentially “catastrophic” construction flaws which may affect the quallity and safety of more than 1600 of the world’s most commonly-used passenger planes.   It has been, from the outset, a David v. Goliath battle. Or rather a David v. two Goliaths.   Boeing is a $90-billion p.a. behemoth: it is the world’s second-biggest aircraft manufacturer and for much of its recent history has been the second largest defence equipment supplier to the United States Government.

The three whistleblowers – Taylor Smith, Jeannine (‘Gigi’) Prewitt and Jimmy Ailes all once worked for Boeing in Wichita, Kansas. They are not rich: both Ms. Prewitt and Mr. Ailes no longer have jobs.   Their lawyers have worked for a decade without financial support or payment for their time: they do not have the vast resources available to Boeing. What both the whistleblowers and the lawyers should have behind them is the United States government. Unfortunately, it has failed to support them; worse it has actively – and disgracefully – worked to undermine their case.

The story is long and – understandably, since it focuses on highly technical aspects of aircraft production – complex. In 2010 I made a one-hour investigative film about it for Al Jazeera: that film painstakingly examined the whistleblowers’ allegations, and uncovered some extraordinary – and unquestionably improper – behaviour by the US Government regulator, The Federal Aviation Administration. The film can be viewed here.

In essence, however, the underlying story is straightforward. In the late 1990s Boeing assigned Smith, Prewitt and Ailes to carry out an audit at one of its sub-contractors – AHF-Ducommun Inc. – based in the Los Angeles suburb of Gardenia. Ducommun was a key supplier for Boeing’s (then) fairly new range of passenger aircraft: the 737 New Generation (NG). Amongst the parts it supplied were chords and bearstraps.

Chords are the most fundamental part of any aircraft: vast semi-circular ‘ribs’ which lock together to form the plane’s skeleton. Bearstraps are vital re-enforcing panels which bolt on and around the weakest points in the fuselage – the exits and other openings. Both are officially described by Boeing’s own  repair manual as Primary Structural Elements; it warns that if these fail it can lead to the “catastrophic failure” of the aircraft.

When it was designed in 1994, the 737NG was to be a highly advanced new type of aircraft. Before it could go into production Boeing was legally required to submit to the US Federal Aviation Administration precise details of exactly how it planned to manufacture the new aircraft’s component parts.  Once those plans are submitted to the  FAA – the regulatory agency for all new US aircraft manufacture – FAA regulations require that they be followed.  To the letter.

Boeing’s detailed plans for the 737NG explicitly required the parts to be cut, shaped, formed and inspected by state of the art computer-controlled machinery.  This new technology ensured that parts would be produced to extraordinarily fine “tolerances” – margins of deviation from designed dimensions. These fine tolerances (less than the thickness of two sheets of normal paper) meant that the 737NG was authorised to fly higher and under greater pressure than previous 737 models which had “hand-formed” parts: such “hand-forming” means individual parts are much less accurately made and typically requires the gaps in airframes to be packed with filling material and “shims”.

Based upon these much publicized new design and manufacturing techniques Boeing was able to charge higher prices for the new 737NG airplanes than for its previous models of 737s; it was also able to compete effectively with new airplane designs being marketed by its rival, Airbus.

Boeing ordered the Ducommun audit because parts the LA-based company supplied, including chords and bearstraps  delivered to the 737NG assembly plant in Wichita, were frequently found to be badly made: some were too small, some were too large, others had assembly holes drilled in the wrong place. A sample internal Boeing Discrepancy Report confirms this.

The audit team discovered the reason for these discrepancies. Instead of using the planned and contractually required  computer-controlled manufacturing process (which was very expensive), Ducommun had instead been “hand-forming” the parts. In some cases this meant workers drawing the outline by hand with a magic marker and then cutting it – again by hand – using an angle grinder. The auditors even produced photographic evidence of this (below).

They also discovered that Ducommun had kept two sets of “books”.  One – the official account – purported to show that all the parts were computer-manufactured; the second told the true story – that the parts had been hand-formed.

The auditors reported their findings to Boeing.   The first page of the Boeing Internal report – August 21, 2000 shows that it was sent to the company’s most senior managers and officers. But instead of acting on it, Boeing told the auditors to keep quiet. The defective parts – illegal under the FAA’s Type Design Certificate for the 737NG – continued to arrive at Wichita, where they were forced into shape using hammers, shim fillers and by drilling additional holes.  These improper manufacturing techniques are dangerous, and can seriously damage the structural integrity of the fuselage.

Smith, Prewitt and Ailes did not keep quiet, and despite threats from Boeing approached the FAA, who promised to investigate, and to keep the whistleblowers’ identities secret. Neither promise was fulfilled. In time all three would lose their jobs.

The lawsuit they then initiated – the one which will (after more than 10 years) reach the 10^th Circuit Court of Appeals on Tuesday – is a classic whistleblowers’ suit. It is brought under the US False Claims Act: this legislation, dating back to the American Civil War, means that the plaintiffs (termed ‘Relators’) sue on behalf of the American people.   This limits the law suit to the specific 737NG aircraft which were bought by the US government – a small sample of the entire commercial 737NG fleet.

The case began in 2005. The twists and turns it has taken since then are labrynthine and bizarre. For many of those years it was in the hands of a judge who had been appointed by President Kennedy: when he died – still in charge of the case – Judge Wesley Brown was 104 years old.

But it is the behavior of the FAA – the US government agency which is meant to protect consumers and regulate the industry – which has been most disturbing. Most of the half a million internal Boeing documents handed over to the whistleblowers during discovery have been locked away under court seal. But those which are public show that the FAA handed to Boeing “designated authority” to police itself. Boeing then handed this self-regulatory authority on to Ducommun.

What did the FAA do to investigate the whistleblowers’ evidence – evidence which suggests that many 737NG aircraft were built with non-conforming Primary Structural Elements and are therefore illegal (because they breach the design requirements in the engineering drawings) and potentially “catastrophic” ? Almost nothing.  Freedom of Information Act documents indicate that  in 2003 and 2005 the FAA  cursorily looked at submissions Boeing made in response to the whistleblowers’ claims –  and pronounced itself satisfied.  It never held a formal investigation, much less any public hearing.   There is no indication in the public records that the FAA has ever meaningfully investigated this matter; instead, it appears to have handed the investigation off to Boeing – and thus that Boeing may have been allowed to investigate itself.

Worse still, in 2010, when the case was nearing its first full court date, the FAA’s chief scientific and technical advisor, Robert Eastin, gave Boeing an affidavit, essentially giving the company and the 737NG a clean bill of health on the Ducommun parts.  (Boeing Exhibit 749).  He did so despite having failed even to look at the FAA’s own database of Service Difficulty Reports which clearly showed that  serious cracking and corrosion had been observed in the 737NG structural parts produced by Ducommun. (You can view the SDR  files here.)

But who had written the Eastin affadavit ?  During cross-examination at his pre-trial deposition hearing it emerged that this vital document had been drafted for him by Boeing.  On page 56  of the transcript of this deposition 15015EastinRobert727)  Mr Eastin admits that Boeing wrote its own exoneration – and theFAA’s most senior safety officer simply accepted that:

As I recall the first draft came from Mr Koh [Boeing’s lead external counsel].  And when I reviewed it I did not change that.

The federal district court heard opening submissions last year: it was presented with overwhelming expert witness testimony from engineering, manufacturing, and quality assurance experts who have unimpeachable credentials, and documentary evidence which supported the whistleblowers’ allegations.   To test that evidence against Boeing’s denials, the court should have set the case down for a full trial. It did not.  Instead the district court decided that the FAA “investigation” (such as it was), carried out by unknown persons done several years before Boeing was required to disclose the most crucial documents in the court proceedings – an”investigation” quite possibly even done by Boeing itself – was the final word.

Most disturbingly, the judge ruled that courts cannot exercise oversight when a federal agency has regulatory authority – in this case the FAA. Despite the fact that it was unknown what the FAA had done, and there had not been any public hearings, and there was no reviewable record of the FAA investigation, the district court decided that the regulator was, essentially, the court of last resort, and because the regulator chose to do nothing and took no action, the problem simply could not exist.

Bill Skepnek, the whistleblowers’ long-serving and dogged lawyer sums up this Alice in Wonderland view:

The bottom line is that the judge found significant evidence of factual disputes between Boeing and the Relators that are amply supported by Boeing’s own internal documents, but found those disputes are not “material” – of legal significance – because if they were the FAA would have done something.

This makes a dangerous mockery of both all consumer protection by US government regulators – and of the courts as the correct place for important issues of public safety to be judged. According to Bill Skepnek:

If Boeing convinces a jury it told the truth about its manufacturing process then so be it: public trust is then affirmed.  But the system needs transparency.  Meanwhile this case has been dismissed because unknown persons, reviewed unknown documents and/or performed unknown tests, on unknown parts, in unknown places, at unknown times, to reach their conclusion.

US regulators are calling for transparency about the Volkswagen scandal: yet this case involving Boeing is hopelessly opaque.   Why should Boeing be treated differently ?  For the FAA, does its role as a cornerstone of US military provision make it a sacred cow ?   The old axiom of the integrity of governance is: We do what we say, and we say what we do.   For US regulators – and courts –  does that principle apply to German companies, but not to American companies – even when the products of those American companies fly millions of passengers around the world every year ?

On Tuesday, the whisleblowers’ will present their argument to the Court of Appeals. If it shuts its ears to them not only will justice have been denied, but vital questions about the safety of the most commonly-used passenger jet in the world will never be properly, or publicly, examined.

Posted on September 26, 2015 by Tim Tate