In re: Ethiopian Airlines Flight ET 302 Crash

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

IN RE: ETHIOPIAN AIRLINES Case No. 19 C 2170 (Consolidated)

FLIGHT ET 302 CRASH

Hon. Jorge L. Alonso

MICHAEL STUMO and NADIA )

MILLERON, as personal representatives )

of the ESTATE OF SAMYA STUMO, )

deceased, )

)

Plaintiffs, ) This Order Relates to: Case No. 19 C 2281

)

v. ) Hon. Jorge L. Alonso

)

THE BOEING COMPANY, )

ROSEMOUNT AEROSPACE, INC., and )

ROCKWELL COLLINS, INC., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

This case is one of dozens brought by family members or other representatives of

passengers who were killed in the tragic airplane crash of Ethiopian Airlines ET 302 on March 10,

2019. Plaintiffs, Michael Stumo and Nadia Milleron, as personal representatives of the estate of

their deceased daughter Samya Stumo, assert claims against the Boeing Company (“Boeing”), the

manufacturer of the aircraft, as well as two of Boeing’s suppliers, Rosemount Aerospace, Inc.

(“Rosemount”), and Rockwell Collins, Inc. (“Rockwell”) (collectively, “Suppliers”), and two of

Boeing’s former CEOs, Dennis Muilenburg and David Calhoun. Boeing has admitted liability for

compensatory damages, and the other defendants now move to dismiss the claims against them.

For the following reasons, their motions are granted.

I. Background

The following is a brief summary of the allegations of the operative First Amended

Complaint (ECF No. 1326) that are material to the present motions.

The ET 302 aircraft was a Boeing 737 MAX 8, one of a family of airplanes that Boeing

began to develop in 2011. To speed the process of obtaining Federal Aviation Administration

(“FAA”) approval, Boeing essentially reused the same 737 design it had been using for decades,

but it developed new engines that were more fuel-efficient.

Because the new engines were larger, the 737 MAX 8 handled differently than its 737

predecessors. To avoid the inevitable delays that would come from either redesigning the product

or retraining pilots, Boeing developed the Maneuvering Characteristics Augmentation System

(“MCAS”), a flight-control system that altered the 737 MAX 8’s handling to mimic that of

previous versions of the 737. The MCAS system incorporated software code written by Rockwell

and sensors supplied by Rosemount. When the sensors detected that the nose of the aircraft pitched

upward, as it sometimes did due to the aerodynamic instability caused by the larger engines, the

system automatically pushed the nose of the aircraft back down in order to stabilize the aircraft.

On October 29, 2018, Lion Air Flight 610, a flight operated by a Boeing 737 MAX 8,

crashed into the Java Sea shortly after takeoff from an Indonesian airport. In the days after the

crash, Indonesian authorities released black-box data showing that the aircraft’s nose dipped

twenty-four times during the short flight. The plane’s sensor had malfunctioned, feeding erroneous

pitch data to the MCAS system, which unnecessarily forced the plane’s nose down at low altitude.

The pilots struggled to regain control, but they were unable to prevent the crash.

Muilenburg contacted the Boeing Board of Directors, of which Calhoun was then a

member, on November 5, 2018, to discuss the crash. By the following day, the FAA had conducted

a safety assessment concluding that the erroneous sensor data causing the plane repeatedly to pitch

downward was a “likely significant contributing factor” in the crash. (Am. Compl. ¶ 210, ECF No.

1326.)

Calhoun stated that the Board viewed the crash as an anomaly. Muilenburg stated in a FOX

Business TV interview that information about the MCAS system was available to pilots and air

carriers, and the 737 MAX 8 could be flown safely. Plaintiffs assert that these statements were

false: they claim that the Board knew that the MCAS system was defective and it was a matter of

time before there was another accident, and Muilenburg knew that Boeing had not been

forthcoming with extensive information about the MCAS system, fearing that doing so might

jeopardize FAA approval and spook customers. Muilenburg and the Board took no actions to

ground the 737 MAX 8, and, according to Plaintiffs, they treated news stories about the aircraft

and its MCAS system as nothing more than a “public-relations problem.” (Am. Compl. ¶ 242.)

They continued to resist any suggestion that the 737 MAX 8 could not be flown safely, until the

FAA grounded the fleet months later, in the wake of the ET 302 crash.

Ms. Stumo was one of the passengers on ET 302, which experienced problems similar to

those that had caused the Lion Air crash months earlier. A damaged sensor caused the MCAS

system to trigger unnecessarily, pushing the nose of the plane downward shortly after takeoff from

Addis Ababa, Ethiopia. The pilots struggled to regain control of the aircraft, but they were

unsuccessful, and the plane crashed after traveling only approximately thirty miles. All passengers

and crew were killed in the crash. Plaintiffs filed this case soon after. In January 2020, during the

pendency of this case, Calhoun became CEO of Boeing.

II. Procedural History

The cases arising out of the ET 302 crash have been consolidated before the undersigned

judge. The plaintiffs initially asserted products liability claims against Boeing, Rosemount, and

Rockwell. In November 2021, the parties in almost every case stipulated to Boeing’s liability for

any duly proven compensatory damages and to dismiss the Suppliers. (See Agreed Stipulation of

the Parties, ECF No. 1217-1; Agreed Order, ECF No. 1220.) This case is one of only a couple in

which the plaintiffs abstained from the stipulation.

In February 2022, Plaintiffs sought leave to file an amended complaint to add claims

against the CEOs. Boeing responded by filing a motion asking the Court to accept its election not

to contest liability in this case, even absent any stipulation. If the Court granted the motion, Boeing

argued, then it followed that the Court should bar any discovery or proceedings addressing

liability, dismiss the claims against the Suppliers as moot, and deny Plaintiffs leave to amend the

complaint to assert claims against the CEOs. Plaintiffs opposed the motion, arguing, in pertinent

part, that Boeing’s concession as to liability for compensatory damages did not resolve Plaintiffs’

proposed claims against the CEOs, nor did it resolve their claims for punitive damages against the

Suppliers or any other defendants.

The Court granted Boeing’s motion as to the request that Plaintiffs be precluded from

taking discovery or presenting evidence on Boeing’s liability, ruling that there was no genuine

controversy over the issue due to Boeing’s concession. The ruling was based in part on the Court’s

conclusion that the law of either Illinois (the state in which Boeing was headquartered) or

Washington (the state of Boeing’s principal place of business) applies to the issue of Boeing’s

punitive damages, and neither state permits punitive damages under the circumstances of this case.

Because punitive damages are not available to Plaintiffs, the Court reasoned, no purported pursuit

of punitive damages provides any proper basis for Plaintiffs to develop and present evidence of

Boeing’s liability. However, the Court denied Boeing’s motion as to dismissal of the claims against

the Suppliers, reasoning that the Suppliers are domiciled in states—Minnesota and Iowa—where

punitive damages are available, and Boeing had not demonstrated that the law of those states could

not possibly apply to the Suppliers on that issue. The Court also denied Boeing’s motion as to

amending the complaint to add claims against the CEOs, explaining that Boeing had not yet shown

that any claims against them would certainly be futile. However, the Court stated, the CEOs would

be “welcome” to file a motion to dismiss in response to any amended complaint, if they believed

the complaint did not state a claim. (Jun. 14, 2022 Order at 7, ECF No. 1325.)

Plaintiffs promptly filed their First Amended Complaint, which asserts products liability

claims of negligence, breach of warranty, strict liability, and failure to warn against Boeing, the

CEOs, and the Suppliers. The complaint also asserts a civil conspiracy claim against Boeing, the

CEOs, and Rockwell.

The Court deferred proceedings in this case for a time to allow Boeing to resolve other ET

302 cases that were readily amenable to settlement. The case is now back before the Court on the

present motions to dismiss.

III. Legal Standard

Federal Rule of Civil Procedure 12(b)(6) permits defendants to assert by motion that the

complaint fails to state a claim upon which relief may be granted. Richards v. Mitcheff, 696 F.3d

635, 637 (7th Cir. 2012). A complaint survives such a motion if it “contain[s] sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “A

claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing

Twombly, 550 U.S.at 556). The complaint’s “[f]actual allegations must be enough to raise a right

to relief above the speculative level.” Twombly, 550 U.S. at 555. In assessing whether the

complaint meets this standard, the Court must “construe the complaint in the light most favorable

to plaintiff, accept all well-pleaded facts as true, and draw reasonable inferences in plaintiff’s

favor.” Taha v. Int’l Bhd. of Teamsters, Loc. 781, 947 F.3d 464, 469 (7th Cir. 2020). However, it

need not “accept as true legal conclusions, or threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements.” Brooks v. Ross, 578 F.3d 574, 581 (7th Cir.

2009) (cleaned up). The Court may consider, “in addition to the allegations set forth in the

complaint itself, documents that are attached to the complaint, documents that are central to the

complaint and are referred to in it, and information that is properly subject to judicial notice.”

Williamson v. Curran, 714 F.3d 432, 436 (7th Cir. 2013).

IV. CEOs’ Motion to Dismiss

The First Amended Complaint asserts five claims against Muilenburg and Calhoun:

negligence (Counts II and III); breach of warranty (Count IV); strict liability (Count V); failure to

warn (Count VI); and civil conspiracy (Count XIII). In response to the CEOs’ motion to dismiss,

Plaintiffs state that they are abandoning all but the negligence claims. (Pls.’ Mem. in Opp’n at 10

n.8, ECF No. 2198.)

The CEOs argue that the negligence claims must be dismissed because the CEOs are not

alleged to have personally participated in the alleged negligence. Instead, they argue, the

allegations against them amount to no more than “merely directing the business of the

corporation[]” of which they were officers, which is not enough to support personal liability. See

Browning-Ferris Indus. of Illinois, Inc. v. Ter Maat, 195 F.3d 953, 956 (7th Cir. 1999).

“[I]n most instances, the law immunizes corporate officers from corporate liabilities.”

People ex rel. Madigan v. Tang, 805 N.E.2d 243, 250 (Ill. App. Ct. 2004).1 “Generally, a corporate

director or officer is not liable for the negligence of the corporation unless he actively participated

in the wrongful conduct or had sufficient knowledge thereof” to give rise to liability. Cooke v.

Maxum Sports Bar & Grill, Ltd., 109 N.E.3d 811, 829 (Ill. App. Ct. 2018). Although the corporate

form does not shield him from liability for “torts . . . in which he actively participates,” he is “not

liable for the corporation’s torts simply by virtue of his office.” Nat’l Acceptance Co. of Am. v.

Pintura Corp., 418 N.E.2d 1114, 1117 (Ill. App. Ct. 1981). Nor is he liable “for a tortious act in

which he himself did not participate but [that he] was nonetheless negligent in failing to prevent.”

Zahl v. Krupa, 927 N.E.2d 262, 280 (Ill. App. Ct. 2010), abrogated on other grounds by Doe v.

Coe, 135 N.E.3d 1 (Ill. 2019). He is liable, on the other hand, for his own “personal acts” that

create a foreseeable risk of danger to someone. Tang, 805 N.E.2d at 251. Thus, for example, “[i]f

an individual is hit by a negligently operated train, the railroad is liable in tort to him but the

president of the railroad is not. Or rather, not usually; had the president been driving the train when

it hit the plaintiff, or had [he] been sitting beside the driver and ordered him to exceed the speed

limit, he would be jointly liable with the railroad.” Browning-Ferris, 195 F.3d at 956.

To the extent it is possible to distill a claim asserted in such sprawling allegations to any

gist (see Pls.’ Mem. in Opp’n at 14 (summarizing the claim in two sentences and then citing to two

ranges of 155 total paragraphs)), the gist of the claims against the CEOs seems to be that, based

1 The Court notes that Tang and Browning-Ferris, cited above, do not directly address common-

law negligence claims; both cases address whether officers are personally liable for corporate

violations of environmental protection statutes. But both cases rely on general “principles

underlying corporation law.” Tang, 805 N.E.2d at 250. In their briefs, both sides cite Tang, which

relied on Browning-Ferris, so the Court will assume the parties agree that these cases are relevant

to this dispute, although the claims are not identical.

on the evidence of the Lion Air crash, the CEOs must have known that the 737 MAX 8 was not

safe, but they took no actions to eliminate, mitigate, or warn of the danger. But the above-cited

principles of Illinois law demonstrate that the Court cannot infer from their position alone that the

CEOs must have known that the 737 MAX 8 was not safe; there must be facts demonstrating that

they had “sufficient knowledge” to give rise to liability for the claimed tort. See Cooke, 109 N.E.3d

at 829 (citing McDonald v. Frontier Lanes, Inc., 272 N.E.2d 369, 377 (Ill. App. Ct. 1971)). To put

the requirement in terms of the federal pleading standard, Plaintiffs must be able to point to “factual

content” in the complaint that “allows the court to draw the reasonable inference” that the CEOs

had sufficient knowledge of the danger to give rise to liability for negligence. See McCauley v.

City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011) (citing Iqbal, 556 U.S. at 678).

It is not self-evident that the true causes of the Lion Air crash—and the implication that the

737 MAX 8 was unsafe—were immediately understood within Boeing, particularly by personnel

such as the CEOs, who were in business-administration roles and are not alleged to have been

intimately involved in the engineering underlying the MCAS system or its incorporation into the

737 MAX 8. Even in a case such as this one that requires the plaintiffs to make allegations about

certain defendants’ mental state, a difficult task for which courts must make some allowances,

Plaintiffs must still “‘provid[e] some specific facts’ to support the legal claims asserted in the

complaint.” McCauley, 671 F.3d at 616 (quoting Brooks, 578 F.3d at 581). “The required level of

factual specificity rises with the complexity of the claim.” Id. at 617 (citing Swanson v. Citibank,

N.A., 614 F.3d 400, 403-04 (7th Cir. 2010)). This is a complex case, indeed, and “[m]any of the

alleged ‘facts’ are actually legal conclusions or elements of the cause of action, which may be

disregarded on a motion to dismiss.” Id. There is not enough specific factual content about the

CEOs’ knowledge and participation in the alleged misconduct to nudge the claim against the CEOs

across the line from conceivable to plausible. See Iqbal, 556 U.S. at 683; see also Doe v. Bd. of

Educ. of City of Chicago, 611 F. Supp. 3d 516, 529 (N.D. Ill. 2020) (“[T]he complete absence of

factual allegations cannot form the basis of a reasonable inference in the Plaintiffs’ favor.”).

The Court agrees with the CEOs that Plaintiffs have not pointed to sufficient allegations of

the CEOs’ active participation in Boeing’s negligence or supporting a reasonable inference of

knowledge sufficient to give rise to liability, so the CEOs’ motion to dismiss is granted. Because

the Court rules that Plaintiffs fail to state a claim against the CEOs, it need not address the issue

of whether punitive damages are available against them. Defendants ask for a denial with

prejudice, but in circumstances like these Plaintiffs are entitled to at least one opportunity to cure

the defective pleading. Runnion ex rel. Runnion v. Girl Scouts of Greater Chicago & Nw. Ind., 786

F.3d 510, 519-20 (7th Cir. 2015) (“Unless it is certain from the face of the complaint that any

amendment would be futile or otherwise unwarranted, the district court should grant leave to

amend after granting a motion to dismiss.”) (internal quotation marks omitted).

V. Suppliers’ Motion to Dismiss

The Suppliers argue that the claims against them should be dismissed because there is no

basis for Plaintiffs to obtain any relief against them. The Court has already ruled, as explained

above, that Plaintiffs are bound to accept Boeing’s election not to contest liability, which means

that Boeing will pay all of Plaintiffs’ duly proven compensatory damages. Because Plaintiffs

cannot obtain a double recovery of compensatory damages from the Suppliers or anyone else, the

only remaining controversy as to the Suppliers is whether they are liable to Plaintiffs for punitive

damages.2 The Court has already ruled that either Illinois or Washington law applies to the issue

2 Plaintiffs purport to dispute whether the Court has already ruled on the question of whether their

claims for compensatory damages against the Suppliers can proceed, suggesting that the Court’s

June 14, 2022 Order left the question open. But Plaintiffs misread that ruling, in which the Court

of whether Plaintiffs can obtain punitive damages from Boeing, and, under the law of those states,

punitive damages are not available. (See Jun. 14, 2022 Order at 4-6, ECF No. 1325.) The Suppliers

argue that the same reasoning should apply to them: the Court should apply Illinois or Washington

law to the punitive damages issue and rule that Plaintiffs cannot obtain punitive damages from the

Suppliers. Because that would leave Plaintiffs with no possibility of obtaining any relief against

them, the Suppliers argue, the claims against them must be dismissed. See Liston v. King.com,

Ltd., 254 F. Supp. 3d 989, 1002 (N.D. Ill. 2017) (explaining that a defendant may obtain dismissal

under Rule 12(b)(6) by showing that “none of the legal theories [the plaintiff] has advanced, or

any other, plausibly establishes a right to recover damages”); see generally Dunn v. Peabody Coal

Co., 855 F.2d 426, 429 (7th Cir. 1988) (granting motion to dismiss for failure to state a claim

where law did not permit recovery of damages or other relief under the circumstances); see also

Alvarez v. Smith, 558 U.S. 87, 93 (2009) (no justiciable controversy remained where plaintiffs had

no valid claim for damages or other relief).

In response, Plaintiffs argue that the Court should apply Iowa and Minnesota law to

Rockwell and Rosemount, respectively, because those are the states where the Suppliers’ principal

places of business are located.

stated that there was “no basis to dismiss the claims against [the Suppliers] at [that] early stage”

only because “no party ha[d] [yet] established that [they could] []not be liable for punitive

damages.” (Jun. 14, 2022 Order at 7, ECF No. 1325.) The Court clearly considered (and still

considers) the question of compensatory damages to have been settled: they are not available from

any other defendants because Boeing has already agreed to pay them. Plaintiffs also argue that the

Court should permit them to proceed against the other defendants because there is no guarantee

that Boeing will remain solvent long enough to be able to pay the compensatory damages it claims

it will pay. The Court is not inclined to indulge this speculation at this point. Boeing has already

settled the vast majority of the ET 302 cases for many millions of dollars, and no other plaintiffs

have raised any such concerns.

In this diversity case, the forum state’s choice-of-law principles dictate the applicable

substantive law. Kaczmarek v. Allied Chem. Corp., 836 F.2d 1055, 1057 (7th Cir. 1987). For tort

cases, Illinois has adopted the approach of the Restatement (Second) of Conflict of Laws (1971)

(“Second Restatement”). See Townsend v. Sears, Roebuck & Co., 879 N.E.2d 893, 898 (Ill. 2007)

(citing Ingersoll v. Klein, 262 N.E.2d 593 (Ill. 1970)).

The Second Restatement sets forth a number of “factors relevant to the choice of the

applicable rule of law,” which comprise the following: “(a) the needs of the interstate and

international systems, (b) the relevant policies of the forum, (c) the relevant policies of other

interested states and the relative interests of those states in the determination of the particular issue,

(d) the protection of justified expectations, (e) the basic policies underlying the particular field of

law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and

application of the law to be applied.” Second Restatement § 6.

The Second Restatement’s general rule for tort cases is that “[t]he rights and liabilities of

the parties with respect to an issue in tort are determined by the local law of the state which, with

respect to that issue, has the most significant relationship to the occurrence and the parties under

the principles stated in § 6.” Id. § 145(1) (emphasis added). Further, it sets forth certain “[c]ontacts

to be taken into account in applying the principles of § 6 to determine the law applicable to an

issue,” which comprise the following: “(a) the place where the injury occurred, (b) the place where

the conduct causing the injury occurred, (c) the domicil, residence, nationality, place of

incorporation and place of business of the parties, and (d) the place where the relationship, if any,

between the parties is centered.” Id. § 145(2). In Illinois, courts are to begin the analysis by

“identif[ying] the four contacts listed in section 145(2) and then appl[y] the general principles of

section 6 to those contacts” to determine which state has the most significant relationship to the

parties and the occurrence. Townsend, 879 N.E.2d at 905. Importantly, the Second Restatement

prescribes an issue-by-issue approach to choice of law (known as “depecage”). See id. at 901.

A. Defendant-by-Defendant Approach and Depecage

The parties’ choice-of-law dispute boils down to their different conceptions of how to apply

the principle of depecage. The Suppliers argue that depecage requires an issue-by-issue approach,

not a defendant-by-defendant approach, and the Court has already analyzed choice of law for the

punitive damages issue, and it need not repeat the task as to each defendant. See Gregory v. Beazer

East, 892 N.E.2d 563, 580 (Ill. App. Ct. 2008). In response, Plaintiffs argue that depecage requires

performing a different choice-of-law analysis for different issues, and claims against different

defendants are different issues. They point to two cases, Jaurequi v. John Deere Co., 986 F.2d

170, 173 (7th Cir. 1993), and In re Air Crash Disaster Near Chicago, Illinois on May 25, 1979,

644 F.2d 594, 617 (7th Cir. 1981) (“In re Chicago Air Crash”), in which the Seventh Circuit took

a defendant-by-defendant approach to choice of law.

Both sides argue that their cases are “controlling.” “[C]ontrolling authority is the

governing, binding law in a given jurisdiction.” Oliva v. Blatt, Hasenmiller, Leibsker & Moore

LLC, 864 F.3d 492, 505 (7th Cir. 2017) (Manion, J., dissenting). For a federal court sitting in

diversity, the question of what authority is “controlling” is not always straightforward. The Court’s

“duty is to answer any question of state law in the same way (as nearly as [it] can tell) as the state’s

highest court would.” Newman v. Metro. Life Ins. Co., 885 F.3d 992, 1000 (7th Cir. 2018). “In the

absence of conclusive authority from that court, [federal courts] follow decisions of intermediate

appellate courts unless there is reason to believe that the highest state court would reach a different

conclusion.” Id.; see Allstate Ins. Co. v. Menards, Inc., 285 F.3d 630, 637 (7th Cir. 2002). “This

safeguard is anchored in the very reasonable notion that a state’s intermediate appellate courts

engage in constant dialogue with the state’s highest court and therefore have a sophisticated idea

of the jurisprudential vectors that its high court is setting.” Green Plains Trade Grp., LLC v. Archer

Daniels Midland Co., 90 F.4th 919, 928 (7th Cir. 2024); see id. at 928 n.11 (citing cases).

However, as this Court has recently recognized, “where a state appellate court decision

disagrees with a Seventh Circuit ruling, the Seventh Circuit ruling remains binding on a federal

district court.” Citizens Ins. Co. of Am. v. Mullins Food Prods., Inc., 719 F. Supp. 3d 822, 829

(N.D. Ill. 2024) (citing Luna v. United States, 454 F.3d 631, 636 (7th Cir. 2006)); see Reiser v.

Residential Funding Corp., 380 F.3d 1027, 1029 (7th Cir. 2004) (explaining that “decisions of

intermediate state courts,” which are themselves “just prognostications,” do not “liberate district

judges from the force of” an interpretation of state law in a binding decision of the United States

Court of Appeals). The Suppliers flatly state that “[t]he Seventh Circuit cannot create Illinois state

law precedent.” (Suppliers’ Reply Br. at 5, ECF No. 2216.) This may be true, vis-à-vis an Illinois

circuit court, but it is all but untrue, vis-à-vis this Court. The Seventh Circuit’s interpretations of

state law are binding on this Court unless and until the Illinois Supreme Court or the Seventh

Circuit rules differently; this Court is not free to depart from them based only its reading of more

recent Illinois Appellate Court decisions. See Reiser, 380 F.3d at 1029. Given this Court’s place

in the judicial hierarchy, it is required to look first to In re Chicago Air Crash and Jaurequi, and

then it may turn to Gregory—but it may follow Gregory only if it is not inconsistent with the

Seventh Circuit decisions.

Ultimately, as the Court will explain below, these cases are all reconcilable. Neither In re

Chicago Air Crash nor Jaurequi directly held, as a matter of Illinois law, that courts must take a

defendant-by-defendant approach to choice of law under the principle of depecage. Therefore, the

Court can—and does—follow Gregory.

First, in In re Chicago Air Crash, applying Illinois’s choice-of-law rules, the Seventh

Circuit performed a separate analysis of choice of law for the punitive damages issue as to each of

the defendants—namely, the airline, which allegedly improperly maintained the aircraft, and the

aircraft manufacturer, for defects in design and production. 644 F.2d at 604-05, 613-16, 620-21.

But the court never discussed or apparently considered any alternative approach, nor did it cite any

authority specifically directing or supporting a defendant-by-defendant approach. And, in any

event, the court reached the same conclusion as to each defendant: Illinois law applied because it

was the law of the state in which the injury occurred. Id. at 616, 620-21. The Seventh Circuit

recognized that the states of the defendants’ principal places of business and in which their injury-

causing conduct took place had powerful interests in seeing their law of punitive damages applied,

but these were four different states—Missouri (where the manufacturer had its principal place of

business), California (where the defective plane was manufactured), New York (where the airline

had its principal place of business), and Oklahoma (where the airline performed the allegedly

negligent maintenance). Id. at 613-14, 620-21. Because each state’s interests in applying its law to

the issue of punitive damages were essentially equal, the Seventh Circuit concluded that none of

these states could be said to have the most significant relationship to the dispute. Therefore, the

court defaulted to the law of the place of the injury under section 146 of the Second Restatement,

applying Illinois law. See id. at 616, 620-21.

In Jaurequi, a products liability case involving an allegedly defective piece of harvesting

equipment known as a “corn head,” the Seventh Circuit agreed with the plaintiff that a proper

application of depecage required a defendant-by-defendant approach, reasoning that the issues in

dispute were different for each of the two defendants under consideration. 986 F.2d at 173-74. One

defendant was alleged to have negligently manufactured and designed the corn head, which was

produced in 1974 and initially sold in 1975; the other defendant subsequently purchased and

modified the corn head in 1986. Id. at 174 n.7. The negligence claims against the separate

defendants stemmed from different alleged misconduct taking place in different time periods, with

eleven years between them. The Seventh Circuit applied the choice-of-law rules of Texas, the case

having been transferred to Illinois from Texas, which has adopted the Second Restatement. The

court expressed skepticism about whether Texas state courts themselves generally “adhere to the

principle of conducting separate conflicts analysis for each defendant,” as the plaintiff claimed. Id.

at 173. Its conclusion that a defendant-by-defendant approach was necessary in that case was

highly factbound, and the case does not hold that a defendant-by-defendant approach is necessary

in all circumstances as a matter of Texas law, much less Illinois law.

In Gregory, in contrast with Jaurequi, the court concluded that a defendant-by-defendant

approach was not appropriate because the claims against the separate defendants did not present

sufficiently different issues. The plaintiff sued numerous defendants for negligence in failing to

warn of the dangers of exposure to asbestos, to which her decedent was exposed at various

worksites in Illinois and Indiana, resulting in his death from mesothelioma. The trial court applied

the law of Indiana, the state where the decedent resided. On appeal, the plaintiff argued that the

court should have separately analyzed choice of law as to the different defendants, rather than

“lump[ing] all the defendants and all [the decedent’s] exposures together.” Gregory, 892 N.E.2d

at 577. The Illinois Appellate Court disagreed, explaining that, while the Second Restatement

requires depecage, “it is the issues presented in a case to which depecage applies, not the different

defendants in a case.” Id. at 580 (citing Townsend, 879 N.E.2d at 901-02 (“[S]ection 145 explicitly

refers to a selective, issue-oriented approach to determining choice-of-law for a particular issue

presented in a tort case. ‘Each issue is to receive separate consideration if it is one which would be

resolved differently under the local law rule of two or more of the potentially interested states.’”

(quoting Second Restatement § 145 cmt. d))). Because the suit was “a multidefendant tort case

asserting one singular injury,” in which the defendants were “all alleged . . . to have done the same

thing,” namely, negligently failing to warn the plaintiff’s decedent of dangerous products that

caused his death, it was a “misapplication” of the principle of depecage to “separate out each

defendant.” Id. at 580-81. Instead, courts “should focus on issues, not parties,” in keeping with

precedent suggesting that “‘the entire litigation must be considered in assessing which forum has

the more significant contacts with the litigation.’” Id. at 580-81 (quoting Vickrey v. Caterpillar

Tractor Co., 497 N.E.2d 814, 818 (Ill. App. Ct. 1986)).

In re Chicago Air Crash and Jaurequi do not prevent this Court from following Gregory,

as they are not based on any contrary interpretation of Illinois law. Nor is Gregory inconsistent

with Jaurequi, which held that a defendant-by-defendant approach is appropriate where the

different defendants are connected to the occurrence by different issues, or In re Chicago Air

Crash, which tacitly confronted that sort of situation. This case is more like Gregory than In re

Chicago Air Crash or Jaurequi because the gist of Plaintiffs’ claims, as in Gregory, seems to be

that Defendants are responsible for a “singular injury” caused by similar misconduct: they are

alleged to have negligently failed to warn Plaintiffs’ decedent of a product’s dangerous condition,

namely, the unreliable MCAS system integrated into Boeing’s 737 MAX 8 aircraft, or take other

actions to eliminate or mitigate the danger that resulted in the deaths of the ET 302 passengers.

(See Pls.’ Mem. in Opp’n to Suppliers’ Mot. at 4, ECF No. 2201.) Defendants are connected to the

occurrence by similar issues—in contrast to Jaurequi, which presented different issues as to the

different defendants due to the eleven-year separation between the time periods in which they were

involved with the dangerous product. Additionally, Gregory’s explicit reliance on the Illinois

Supreme Court’s decision in Townsend gives the Court confidence that it represents an accurate

prediction of how the Illinois Supreme Court would rule on the question. Gregory, 892 N.E.2d at

580; see Green Plains, 90 F.4th at 928. The Court therefore follows Gregory and analyzes choice-

of-law issue by issue, rather than defendant by defendant, keeping “the entire litigation” in view

as it does so. See Gregory, 892 N.E.2d at 580.

B. Choice of Law Analysis

Having dealt with the parties’ arguments about the proper application of the principle of

depecage, the Court is now positioned to make a choice of law. As Plaintiffs seem to recognize by

devoting most of their brief to the defendant-by-defendant question, the Court’s decision on that

issue makes the result all but a foregone conclusion, given the Court’s previous choice-of-law

decision. Nevertheless, for completeness, and in an abundance of caution, because the earlier

decision did not expressly address the Suppliers’ contacts, the Court will perform the analysis

afresh.

The Court begins by identifying the contacts listed in Second Restatement section 145(2).

The first contact is the place of injury, which is in Ethiopia. Under section 146 of the Second

Restatement, there is a general presumption in favor of the law of the place where the injury

occurred, but all parties seem to agree that, because the location of the injury in Ethiopia was

fortuitous, the presumption should not apply. See Second Restatement § 146 cmt. c.

The second contact is the place where the injury-causing conduct occurred, which is

primarily Washington, the state of Boeing’s principal place of business and where the 737 MAX

8 was designed and manufactured. Plaintiffs emphasize that Rosemount and Rockwell, during

operations at their principal places of business in Minnesota and Iowa, learned of problems with

the MCAS system, to which they had contributed their own products, and took no action to attempt

to warn anyone about the defective system or mitigate the defect.

Third are the domiciles, places of business, and places of incorporation of the parties. Ms.

Stumo was domiciled in Massachusetts. Boeing was headquartered in Illinois at the time of the

accident, with its principal place of business in Washington. Rockwell is an Iowa corporation with

its principal place of business in Iowa, and Rosemount is a Minnesota corporation with its principal

place of business in Minnesota.

The fourth contact is the place where the relationship between the parties is centered. This

factor “does not play a role here since there was no relationship” between Ms. Stumo and any of

the defendants, Gregory, 892 N.E.2d at 583; Ms. Stumo’s relationship was with Boeing’s

customer, Ethiopian Airlines, not directly with Boeing or the Suppliers.3 Thus, based on the

relevant contacts, the candidates are Illinois, Washington, Iowa, Minnesota, and Massachusetts,

with Washington leading the pack, given that it is the principal place of business of the principal

defendant and the place of the most central injury-causing conduct.

Before drawing a conclusion, the Court must apply the general principles of section 6 to

these contacts to determine the state with the most significant relationship to the “occurrence and

the parties.” See Townsend, 879 N.E.2d at 901. The most relevant principles in a “personal injury

tort case” are (b) the relevant policies of the forum, (c) the relevant policies of other interested

states and the relative interests of those states in the determination of the particular issue, and (e)

the basic policies underlying the particular field of law. See Gregory, 892 N.E.2d at 583 (citing

3 Based on Comment e of the Second Restatement § 145, the “relationship” between the “parties”

mentioned in this factor refers to the relationship between the plaintiff and the defendants, not the

relationships of the defendants among themselves. See Jones ex rel. Jones v. Winnebago Indus.,

Inc., 460 F. Supp. 2d 953, 971-72 (N.D. Iowa 2006).

Townsend, 879 N.E.2d at 906-07) (explaining that the other factors are “not implicated” in personal

injury tort cases).

As the Court previously explained when it considered choice of law for the punitive

damages issue as to Boeing, “the key principles underlying the most-significant-relationship

determination here have to do with the policies and interests of the relevant jurisdictions—and the

policies underlying the relevant area of law generally—with respect to the issue of punitive

damages” for the products liability claims Plaintiffs have raised. (See Jun. 14, 2022 Order at 5,

ECF No. 1325.) And punitive damages are “primarily concerned . . . with the state’s ‘regulation

of conduct’ by the defendants and others in similar positions.” (Id. at 6 (quoting In re Chicago Air

Crash, 644 F.2d at 617).) Here, the injury-causing conduct took place primarily and most centrally

in Washington, where Boeing has its principal place of business and where the 737 MAX 8 was

designed and made, and Washington has a strong interest in regulating the conduct of

manufacturers within its borders. Additionally, Boeing’s headquarters during the relevant time

period was in Illinois, and Boeing is the central defendant in this case, as the manufacturer of the

dangerous product at issue and the entity around which all the other defendants’ actions and

relationships revolved.

Some of the injury-causing conduct may have taken place in Iowa and Minnesota, to the

extent that Rockwell and Rosemount knew that the MCAS system did not function properly and

made the 737 MAX 8 unsafe, but took no mitigating action. But the Court fails to see how either

of those states could have a more significant relationship to the occurrence and the parties than

Washington, where all Defendants’ injury-causing conduct was coordinated and congealed into

the actions and inactions that produced the defective product and caused the accident. On balance,

the weightiest, most significant of the injury-causing conduct took place in Washington, where the

737 MAX 8 and the MCAS system were designed and manufactured, and where the Suppliers’

components were integrated into the aircraft. See Mitchell v. Lone Star Ammunition, Inc., 913 F.2d

242, 250 (5th Cir. 1990) (applying law of Texas, the state where the defective product was

manufactured and “placed into the stream of commerce,” although manufacturer and supplier

defendants were organized in different states); Jones ex rel. Jones v. Winnebago Indus., Inc., 460

F. Supp. 2d 953, 959, 970 (N.D. Iowa 2006) (applying Iowa law, where fatal accident was caused

by “slide out” mechanism incorporated into an RV designed and manufactured in Iowa, and noting

that although the “slide out” component was manufactured by a Washington company operating

in Oregon, it was built for the Iowa company with the help of the latter company’s engineers); see

also Holiday v. Ford Motor Co., 2006-Ohio-284, ¶ 16 (noting that the parties “d[id] not dispute

that Michigan law should be applied to the products liability claim” arising out of malfunctioning

seat belt in Ford Explorer because the vehicle—not the seat belt—was designed and tested in

Michigan). (See Am. Compl. ¶¶ 20-21 (describing the Suppliers’ relationship with Boeing and

alleging that it involved “airplane component parts, including sensors, . . . that were specifically

designed for Illinois-based Boeing’s 737 MAX 8 airplanes”), ¶¶ 66-68, 187-201 (describing

Suppliers’ relationship with Boeing and role in production of the MCAS system).)

In accord with the reasoning of the Seventh Circuit in In re Chicago Air Crash, the Court

recognizes the powerful interests of the states where Boeing was headquartered, where it had its

principal place of business, and where the injury-causing conduct took place, in regulating

manufacturing activity or the conduct of manufacturers operating within their borders. See In re

Chicago Air Crash, 644 F.2d at 613-16. Iowa and Minnesota have similar interests in regulating

the conduct of corporations based in those states, but, on balance, either Washington or Illinois has

the most significant relationship to the occurrence and the parties, given the primacy of the injury-

causing conduct that occurred in those states and the centrality of the party (Boeing) based in those

states.

Because there 1s no conflict as to the law of punitive damages as between those two states,

the Court need not go farther and choose which of the two has the more significant relationship. It

is enough to conclude that Washington or Illinois has the most significant relationship to the

punitive damages issue in this case, and the law of one of those states must apply to the punitive

damages issue, even as to Rockwell and Rosemount. Therefore, punitive damages are unavailable

against the Suppliers. Based on Boeing’s stipulation to compensatory damages, there remains no

relief Plaintiffs can obtain from the Suppliers, so the claims against them are dismissed, without

prejudice to reinstatement if the circumstances surrounding Boeing’s election not to contest

liability change.

CONCLUSION

For the foregoing reasons, the CEOs’ motion to dismiss [2147] is granted. The Suppliers’

motion to dismiss [2153] is granted. The memorandum in support of their motion [2154], which

is improperly docketed as a motion, is denied as moot. Defendants’ motion to seal [2218] is

granted, as the Court did not rely on the exhibits that are the subject of the motion in reaching its

decision. See Baxter Int'l v. Abbott Lab’ys, 297 F.3d 544, 546 (7th Cir. 2002). Plaintiffs may file

an amended complaint, if desired, by 4/30/25.

SO ORDERED. ENTERED: March 21, 2025

United States District Judge

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