Boeing negotiated a deal to avoid charges in return for a substantial compensation program, but that deal didn't preclude charges against individuals.
Episode Summary:
Mark Forkner is in big trouble. The engineering test pilot for Boeing is alleged to have misled the FAA about the MCAS stability control system used on Boeing 737 Max aircraft, the major contributor in two crashes with the loss of all aboard. Boeing as a corporation has negotiated a deal with the US Department of Justice to avoid prosecution in exchange for a large compensation payout to multiple parties. Individual prosecutions, like those of Forkner, are still at play. No single cause is responsible for an aviation accident. Usually, they are multiple small things which aggregate to create a safety failure, either in hardware, software or in crew operations. What Forkner says at trial may have real implications for the way engineering personnel deal with regulators in industries such as aerospace, automotive and medical devices.
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Transcript of this week’s show:
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Mark Forkner must be living a nightmare right now. The former Boeing technical test pilot, once responsible for the now famous MCAS flight control system on the Boeing 737 Max, has been indicted on multiple charges in a US Federal court. in Fort Worth, TX. Prosecutors allege that Forkner knew about deficiencies in the MCAS system, and withheld that information from FAA regulators, who in turn deleted reference to it in their report on the aircraft.
They reasoned that this omission resulting in the deletion of MCAS details in pilot operating manuals, which contributed to the crash of two aircraft, Lion Air Flight 610, and Ethiopian Airlines Flight 302. With two accidents occurred within a five-month span between October 2018 and March 2019, and resulted in the grounding of 737 Max aircraft for over a year. Boeing negotiated a deal that will result in the withdrawal of fraud charges by 2024 as Boeing completes a large, $2.5 billion payout to multiple parties.
That deal will close the matter from a legal perspective for Boeing, but it in no way precludes prosecution of individuals, and there’s no way to know if Forkner is a lone case, or the tip of the iceberg. He has entered a not guilty plea, and of course at trial we can expect to learn a great deal about what Forkner and Boeing engineering personnel knew about the MCAS system and whether they conspired to conceal important details of that from the FAA.
For engineering professionals in safety critical industries in transportation, civil engineering or the medical fields, there is an important take away here. The most important thing to remember is that, despite your belief that concealing data from a regulatory agency has no safety consequences, if you are wrong, you will be looking down the barrel of a Grand Jury. No, I have no doubt whatsoever that Forkner never imagined that deleting mention of the MCAS system from an FAA report would be an issue.
The whole point of the MCAS system was that it was designed to operate in the background, unnoticed and that in fact acted as a sort of safety system itself, dealing with some handling issues in a few limited flight regimes that, unaddressed, would likely have resulted in an FAA requirement for additional pilot training. Everyone’s intentions were good. Yet Forkner could go to jail for a hundred years. Why? Because as a technical test pilot, and one involved in development of the flight control systems for this aircraft, it’s likely that a jury will hold that Forkner had a duty of care to determine what possible failure modes of MCAS might do to aircraft controllability, and to keep the FAA in the loop.
In legal terms, the FAA are a sort of “learned intermediary”, rather like doctors are in the pharmaceutical industry. Drugmakers market direct to consumers, but they rely on the judgement of physicians to regulate use. Similarly, FAA approval is the safety seal of approval for airlines purchasing equipment, and training their pilots to fly that equipment. Deceive the FAA, and you are in trouble. Deceive any regulatory agency and chances are you’re in trouble.
Takeaway number one is: don’t do it. Don’t do it if a supervisor tells you to, and don’t do it if you independently think that it won’t be an issue. Forkner was between a rock and a hard place: MCAS was developed to operate in the background, to avoid an FAA ruling that would require extensive and additional pilot training for the new aircraft. Boeing’s culpability was taken care of with the Justice Department by that $2.5 billion deal. Forkner does not have the ability to negotiate that kind of deal. Most likely, he thought that an MCAS system failure wouldn’t create a problem. It’s very difficult to predict all possible failure modes for any system. Criminal intent? I doubt it. Negligence? Very possible in the eyes of a jury, and I wouldn’t be surprised if we see a plea bargain.
There are no winners in this disaster. But the lesson here is that when you’re sitting across the table from a regulator involved in safety critical systems, tell them everything. No matter how inconsequential it might seem and no matter how much pressure you’re under to sweep it under the rug.
