Boeing pilot involved in Max testing is indicted in Texas
Join Date: Jan 2008
Location: Canada
Posts: 631
Likes: 0
Received 0 Likes
on
0 Posts
This isn't going to stop with Forkner...
Join Date: Jul 2009
Location: France
Age: 62
Posts: 98
Likes: 0
Received 0 Likes
on
0 Posts
Not over yet. Boeing's deal with the DJ, which combined a small penalty (on top of already agreed payments) with white-washing of their criminal responsibility, is being challenged:
Families of the crash victims are suing the US. They accused the justice department of denying them an opportunity to weigh in on a criminal investigation into Boeing under a 2004 law meant to protect victims of crime and their representatives. They are asking a federal judge to force the department to turn over documents related to that investigation and to revoke the company’s protection from further criminal prosecution on the matter.
A recent Seattle Times article reports the "scapegoat statement" by an undisclosed FAA employee.
Families of the crash victims are suing the US. They accused the justice department of denying them an opportunity to weigh in on a criminal investigation into Boeing under a 2004 law meant to protect victims of crime and their representatives. They are asking a federal judge to force the department to turn over documents related to that investigation and to revoke the company’s protection from further criminal prosecution on the matter.
A recent Seattle Times article reports the "scapegoat statement" by an undisclosed FAA employee.
Last edited by spornrad; 16th Dec 2021 at 17:40.
Join Date: Jul 2013
Location: Within AM radio broadcast range of downtown Chicago
Age: 71
Posts: 842
Received 0 Likes
on
0 Posts
As facts or assertions about factual matters about Forkner's words and actions have been disclosed, and as the overall series of events and communications in these matters has become more clearly known, a possible connection between some aspects of the overall story has seemed intriguing. With these latest revelations as well as what this SLF/att'y takes as a deep and wide consensus among the pilot community that Forkner indisputably is being made a scapegoat, I'm going to suggest a possible connection.
It is pretty well-established, is it not, that Southwest did not want the MAX to involve any simulator training time, that this issue was part of its collective bargaining situation, that there were significant financial penalties involved if Boeing did not deliver, and - though I haven't kept current with the lawsuit SWA's pilots' labor organization brought against Boeing - that Boeing made a series of direct representations to Southwest about fulfilling these conditions. And then, Forkner ended up being employed by Southwest, for a time after he left Boeing.
The very central role that Southwest's conditions for the 737 MAX played in the overall progession of events with the aircraft should be significantly helpful to the defense, perhaps very significantly helpful. That is, when looking for ways to describe and to place in context the "larger picture of responsibility" beyond what Mr. Forkner said and did (and what he omitted), the defense need look only as far as Southwest's conditions for the 737 MAX. And if legal counsel was thinking in a sufficiently anticipatory manner, during his stint at the airline, much groundwork could have been set in place by Mr. Forkner. Of course the Southwest portion of the overall 737 MAX debacles is just one such portion, but with Mr. Forkner's immediately successive employment there, it would appear to be one portion, at least, of the larger picture of responsibility which would be comparatively easy to put into evidence.
It is pretty well-established, is it not, that Southwest did not want the MAX to involve any simulator training time, that this issue was part of its collective bargaining situation, that there were significant financial penalties involved if Boeing did not deliver, and - though I haven't kept current with the lawsuit SWA's pilots' labor organization brought against Boeing - that Boeing made a series of direct representations to Southwest about fulfilling these conditions. And then, Forkner ended up being employed by Southwest, for a time after he left Boeing.
The very central role that Southwest's conditions for the 737 MAX played in the overall progession of events with the aircraft should be significantly helpful to the defense, perhaps very significantly helpful. That is, when looking for ways to describe and to place in context the "larger picture of responsibility" beyond what Mr. Forkner said and did (and what he omitted), the defense need look only as far as Southwest's conditions for the 737 MAX. And if legal counsel was thinking in a sufficiently anticipatory manner, during his stint at the airline, much groundwork could have been set in place by Mr. Forkner. Of course the Southwest portion of the overall 737 MAX debacles is just one such portion, but with Mr. Forkner's immediately successive employment there, it would appear to be one portion, at least, of the larger picture of responsibility which would be comparatively easy to put into evidence.
Join Date: Jul 2013
Location: Within AM radio broadcast range of downtown Chicago
Age: 71
Posts: 842
Received 0 Likes
on
0 Posts
Specific information items in dispute in discovery
On Dec. 15 2021 the defendant's attorneys filed a motion to compel discovery, in other words a motion seeking an order by the court requiring the prosecution to turn over to the defense specific information. Taking some liberties here, I'm posting the section which describes, in detail, information the defense believes it is entitled to receive, but the government has not yet produced. First there is a section about the volume of discovery so far in this case (and "Brady" and "Giglio" refer to information the prosecution has to turn over because such information is exculpatory or impeaching). (I know this isn't a lawyers' forum, but a pilot is being held up as a scapegoat by the awesome power of the federal government, and perhaps his brothers and sisters among PPRuNers should, and do, care to know more.)
________________
At the outset, it should be noted that this case is not the usual criminal case. Rather, this case involves an enormous volume of discovery (15.4 million documents, comprising some 60,000,000 pages) and, even as continued, is on a rapid trajectory that makes it extremely challenging, if not impossible, for the defense to digest all of the information provided by the government before the current trial date, less than two months from now.
* * *
C. Specific requests to compel evidence.
In addition to a general order for the government to identify Brady/Giglio evidence in the already disclosed discovery, and to produce any Brady/Giglio material that has not yet been produced, Mr. Forkner also makes the following specific observations about particular items whose production was requested in Appendices A and C.
Appendix A, Items 3 & 3A: Mr. Forkner asked for production of evidence that what he experienced in the 737-MAX simulator on November 15, 2016 was not MCAS acting as designed, but rather simply a simulator malfunction. In response, the government points to grand jury testimony of, and documents relating to, Vince Pupo, DR 1079, and a presentation from TRU Simulation. See Appendix B, at 3. These answers are non-responsive. Mr. Pupo said that he does not know or remember whether, on November 15, 2016, the simulator incorporated a simulation of MCAS. Likewise, TRU Simulation has nothing to say about this, as they provided only hardware and did not know the software. In line with the government’s obligations under Brady, we move to compel the government to produce any and all evidence that Mr. Forkner did not experience MCAS on November 15, 2016, either because MCAS was not programmed into the simulator, or because the trimming that Mr. Forkner saw was an unrelated glitch in the simulator’s software which later got fixed by Boeing.
Appendix A, Item 4: Mr. Forkner requested several categories of evidence regarding, generally, (1) Boeing’s disclosures to the FAA about MCAS prior to the MAX crashes, including the low-speed expansion, as well as certain MCAS features implicated in the crashes; (2) internal FAA communications about those disclosures, including who at the FAA was aware of the expansion, when and how they learned of it, and what they did in response; and (3) the FAA’s own review of its communications with Boeing about MCAS, including any findings or criticisms related to the AEG. This evidence is relevant to establishing whether or not government witness Stacey Klein or others in the AEG in fact knew about the low-speed expansion – and therefore were not deceived – or should have known about the expansion – and thus have a motive or bias to point the finger at Mr. Forkner. As such, this evidence is potentially both exculpatory and impeaching. In response, the government points to a presentation Boeing counsel gave to DOJ and summaries of government interviews with FAA employees, but they do not identify where in the tens of millions of pages of FAA documents this evidence can be found. In line with the principles set forth above, the government “[who] has presumably reviewed the discovery in this case,” should be compelled to specifically identify documents responsive to these requests.
Appendix A, Item 5: Mr. Forkner requested evidence that a large number of personnel at the Federal Aviation Administration (“FAA”) had access to Boeing 737-MAX information on the “Share Point” system; and he particularly requested evidence that FAA employee Stacey Klein, a designated government witness, had such access and, if so, when and how she accessed that system. This evidence is potentially both exculpatory and impeaching, as it could show that Ms. Klein in fact knew or should/could have known about the MCAS expansion even independently of anything Mr. Forkner did or did not tell her. The government, however, refers us to a document range of some 3 million pages. Under the principles set out above, the government should be compelled to identify more specifically where the requested information is located.
Appendix A, Item 6: Mr. Forkner requested any and all evidence, including witness statements, that MCAS and MCAS’s expansion to low speeds was not material to the decision about what level of pilot training should be required for the 737-MAX. Such evidence is obviously exculpatory, since it would negate a critical element of each of the charges against Mr. Forkner. The government, however, simply referred us to “the interview reports and agent notes in this case, including those for both FAA and U.S.-based airlines’ personnel.” In line with the principles set forth above, the government should be compelled to specifically identify the witnesses who made such statements and the particular statements that they made, rather than simply pointing to a mass of discovery.
Appendix A, Item 12: Mr. Forkner requested evidence related to specific representations made by Boeing counsel to the government about Boeing counsel’s preparation of a key witness, who the government intends to call in its case in chief. Specifically, Boeing counsel prepared the witness “using all of the documents that counsel identified for DOJ in advance of [the witness’] testimony,” and after the testimony, DOJ told Boeing counsel that “the Grand Jury went as advertised with regard to [the witness].” Mr. Forkner asked the government to provide (1) the documents that Boeing counsel “identified for DOJ in advance of Loffing’s testimony” and (2) the content of how the witness’ testimony was “advertised” before he appeared. In response, the government points to the same notes referenced above and records of Loffing’s grand jury testimony and interviews. These answers are non-responsive. Obtaining answers is important: this witness claims to have remembered a key verbal conversation with Mr. Forkner “as part of the preparation for testifying in front of the grand jury,” and he places the conversation in a date range that he was “able to narrow [ ] down” with Boeing’s lawyers. Under the principles laid out above, the government should be compelled to either produce any additional notes and records of the referenced conversations, or confirm that they have none.
Appendix A, Item 14: Mr. Forkner requested evidence as to a June 7, 2013 internal meeting at Boeing that concerned how to minimize the certification and training impact of MCAS, but the government simply “refer[red us] to the discovery as to this request.” To the extent this implicates Brady (as we suggest in the last sentence of that item), the Court should definitely compel identification and/or production of the implicated Brady material. But even as to the Rule 16 implications of this request, it is inadequate to refer us to a range of 67.2 million pages of discovery. In order to expedite trial preparation for a February 7, 2022 trial date, the Court should compel the government to more specifically identify and/or produce the requested evidence.
_________
________________
At the outset, it should be noted that this case is not the usual criminal case. Rather, this case involves an enormous volume of discovery (15.4 million documents, comprising some 60,000,000 pages) and, even as continued, is on a rapid trajectory that makes it extremely challenging, if not impossible, for the defense to digest all of the information provided by the government before the current trial date, less than two months from now.
* * *
C. Specific requests to compel evidence.
In addition to a general order for the government to identify Brady/Giglio evidence in the already disclosed discovery, and to produce any Brady/Giglio material that has not yet been produced, Mr. Forkner also makes the following specific observations about particular items whose production was requested in Appendices A and C.
Appendix A, Items 3 & 3A: Mr. Forkner asked for production of evidence that what he experienced in the 737-MAX simulator on November 15, 2016 was not MCAS acting as designed, but rather simply a simulator malfunction. In response, the government points to grand jury testimony of, and documents relating to, Vince Pupo, DR 1079, and a presentation from TRU Simulation. See Appendix B, at 3. These answers are non-responsive. Mr. Pupo said that he does not know or remember whether, on November 15, 2016, the simulator incorporated a simulation of MCAS. Likewise, TRU Simulation has nothing to say about this, as they provided only hardware and did not know the software. In line with the government’s obligations under Brady, we move to compel the government to produce any and all evidence that Mr. Forkner did not experience MCAS on November 15, 2016, either because MCAS was not programmed into the simulator, or because the trimming that Mr. Forkner saw was an unrelated glitch in the simulator’s software which later got fixed by Boeing.
Appendix A, Item 4: Mr. Forkner requested several categories of evidence regarding, generally, (1) Boeing’s disclosures to the FAA about MCAS prior to the MAX crashes, including the low-speed expansion, as well as certain MCAS features implicated in the crashes; (2) internal FAA communications about those disclosures, including who at the FAA was aware of the expansion, when and how they learned of it, and what they did in response; and (3) the FAA’s own review of its communications with Boeing about MCAS, including any findings or criticisms related to the AEG. This evidence is relevant to establishing whether or not government witness Stacey Klein or others in the AEG in fact knew about the low-speed expansion – and therefore were not deceived – or should have known about the expansion – and thus have a motive or bias to point the finger at Mr. Forkner. As such, this evidence is potentially both exculpatory and impeaching. In response, the government points to a presentation Boeing counsel gave to DOJ and summaries of government interviews with FAA employees, but they do not identify where in the tens of millions of pages of FAA documents this evidence can be found. In line with the principles set forth above, the government “[who] has presumably reviewed the discovery in this case,” should be compelled to specifically identify documents responsive to these requests.
Appendix A, Item 5: Mr. Forkner requested evidence that a large number of personnel at the Federal Aviation Administration (“FAA”) had access to Boeing 737-MAX information on the “Share Point” system; and he particularly requested evidence that FAA employee Stacey Klein, a designated government witness, had such access and, if so, when and how she accessed that system. This evidence is potentially both exculpatory and impeaching, as it could show that Ms. Klein in fact knew or should/could have known about the MCAS expansion even independently of anything Mr. Forkner did or did not tell her. The government, however, refers us to a document range of some 3 million pages. Under the principles set out above, the government should be compelled to identify more specifically where the requested information is located.
Appendix A, Item 6: Mr. Forkner requested any and all evidence, including witness statements, that MCAS and MCAS’s expansion to low speeds was not material to the decision about what level of pilot training should be required for the 737-MAX. Such evidence is obviously exculpatory, since it would negate a critical element of each of the charges against Mr. Forkner. The government, however, simply referred us to “the interview reports and agent notes in this case, including those for both FAA and U.S.-based airlines’ personnel.” In line with the principles set forth above, the government should be compelled to specifically identify the witnesses who made such statements and the particular statements that they made, rather than simply pointing to a mass of discovery.
Appendix A, Item 12: Mr. Forkner requested evidence related to specific representations made by Boeing counsel to the government about Boeing counsel’s preparation of a key witness, who the government intends to call in its case in chief. Specifically, Boeing counsel prepared the witness “using all of the documents that counsel identified for DOJ in advance of [the witness’] testimony,” and after the testimony, DOJ told Boeing counsel that “the Grand Jury went as advertised with regard to [the witness].” Mr. Forkner asked the government to provide (1) the documents that Boeing counsel “identified for DOJ in advance of Loffing’s testimony” and (2) the content of how the witness’ testimony was “advertised” before he appeared. In response, the government points to the same notes referenced above and records of Loffing’s grand jury testimony and interviews. These answers are non-responsive. Obtaining answers is important: this witness claims to have remembered a key verbal conversation with Mr. Forkner “as part of the preparation for testifying in front of the grand jury,” and he places the conversation in a date range that he was “able to narrow [ ] down” with Boeing’s lawyers. Under the principles laid out above, the government should be compelled to either produce any additional notes and records of the referenced conversations, or confirm that they have none.
Appendix A, Item 14: Mr. Forkner requested evidence as to a June 7, 2013 internal meeting at Boeing that concerned how to minimize the certification and training impact of MCAS, but the government simply “refer[red us] to the discovery as to this request.” To the extent this implicates Brady (as we suggest in the last sentence of that item), the Court should definitely compel identification and/or production of the implicated Brady material. But even as to the Rule 16 implications of this request, it is inadequate to refer us to a range of 67.2 million pages of discovery. In order to expedite trial preparation for a February 7, 2022 trial date, the Court should compel the government to more specifically identify and/or produce the requested evidence.
_________
Join Date: May 2001
Location: England
Posts: 1,904
Likes: 0
Received 0 Likes
on
0 Posts
Appendix A, Items 3 & 3A
.. Is interesting. I experienced what I could only say at the time was uncommanded and erratic pitching during an airline assessment on the 737 Max back towards the end of 2017. I wasn't the only one. The instructor provided feedback to Boeing immediately. Boeing Training at LGW should have records. If not, these things should be documented henceforth. Just as important as FDRs.
.. Is interesting. I experienced what I could only say at the time was uncommanded and erratic pitching during an airline assessment on the 737 Max back towards the end of 2017. I wasn't the only one. The instructor provided feedback to Boeing immediately. Boeing Training at LGW should have records. If not, these things should be documented henceforth. Just as important as FDRs.
Join Date: Dec 2005
Location: Bada Bing
Posts: 34
Likes: 0
Received 0 Likes
on
0 Posts
I can't help wondering how he felt upon hearing the cause of both crashes. Guilt? Remorse? I'm sure he was aware of the fact that nothing was done by the managent with his doubts and remarks.
Not excusing the management at all, but the pilot did too little, and if ever “scapegoat” deserved to be prosecuted, he does.
Join Date: Dec 2019
Location: Derry
Posts: 140
Likes: 0
Received 0 Likes
on
0 Posts
Was Forkner not just a simulator tester and involved with Technical Publications such as VOL2? He wasn't a test pilot like the other 20 or so who actually put the Max through the test program aloft and who would have know EXACTLY how the Max behaved. The simulators during development are pretty crude representations of the real aircraft. So how can one man fairly low down the knowledge tree be held responsible? The design engineers would have had far more knowledge than Forkner too. All very strange and smells like a case of passing the buck. Not to say that what he did was good - it was not. But did this one low level guy change the course of the 737 development program?
Retd Guy
Retd Guy
Join Date: Jan 2008
Location: Canada
Posts: 631
Likes: 0
Received 0 Likes
on
0 Posts
So how can one man fairly low down the knowledge tree be held responsible?
ANY pilot who flew either the aircraft or the simulator and experienced uncommanded nose down pitch should have screamed long and loud about this unbelievable situation. They all are responsible.
Join Date: Dec 2014
Location: Schiphol
Posts: 475
Likes: 0
Received 0 Likes
on
0 Posts
Trial date moved back again
The start of the trial at the USDC of Northern Texas has been moved again. Now from Feb 7th to March 7th, 2022.
Reason again, to give his lawyers more time to shift through the millions of documents and prepare his defence.
Reason again, to give his lawyers more time to shift through the millions of documents and prepare his defence.
Join Date: Jul 2013
Location: Within AM radio broadcast range of downtown Chicago
Age: 71
Posts: 842
Received 0 Likes
on
0 Posts
And the trial will have a somewhat narrower scope once it does begin. The federal District Court judge has dismissed the part of the indictment against Mr. Forkner that alleges fraud relating to aircraft parts, reportedly on grounds that MCAS was intangible software code, and such code is not within the legal definition of "parts" (based on reporting in WSJ).
Still pending are counts against which the defense is seen as likely to argue no fraud or deceit occurred, given the fact that FAA already knew the material facts about MCAS at the time of Mr. Forkner's allegedly criminal interactions with FAA.
On a related note, also reported is continurd legal sparring over the settlement Boeing entered into with the DOJ to resolve criminal allegations against the company, with families of crash victims arguing the government failed to comply with legally required consultations with them.
Still pending are counts against which the defense is seen as likely to argue no fraud or deceit occurred, given the fact that FAA already knew the material facts about MCAS at the time of Mr. Forkner's allegedly criminal interactions with FAA.
On a related note, also reported is continurd legal sparring over the settlement Boeing entered into with the DOJ to resolve criminal allegations against the company, with families of crash victims arguing the government failed to comply with legally required consultations with them.
Last edited by Pilot DAR; 9th Feb 2022 at 19:22. Reason: typo
Join Date: Jul 2013
Location: Within AM radio broadcast range of downtown Chicago
Age: 71
Posts: 842
Received 0 Likes
on
0 Posts
At trial, the Defense will have a real expert
Rather than summarizing what is a short and hard-hitting filing by the defense - here is the notice by Mr. Forkner's defense attorneys of their designation of an expert witness. As just an SLF (& att'y) I'm refraining from commenting on any specific credentials of this expert, though it won't (or shouldn't) offend any aviators to note that if this individual is not an expert for purposes of this trial, then there is no such thing as expert witness testimony.
"Pursuant to the Court’s Scheduling Order (ECF No. 12), Mr. Forkner hereby designates D. Lee Moak as a potential witness who may be construed as an expert under Federal Rules of Evidence 702, 703, and 705.
Lee Moak is a former U.S. Marine and U.S. Navy fighter pilot. With the U.S. Marine Corps (1977–1989), he flew the F-4 Phantom and F-18 Hornet and was progressively promoted through the ranks to Captain. With the U.S. Navy Reserve (1989–2001), he was promoted to Commander. While a pilot at Delta Airlines for 26 years (1988–2014), Mr. Moak flew the Boeing 727, 737, 757, and 767, and L1011. Additionally, he was the Master Executive Chairman of the Delta Master Executive Council (2005–2010) and President of the Air Line Pilots Association, International (2011–2014). Mr. Moak received his BA in Communication Arts from the University of West Florida in 1979.
After the tragic Boeing 737 MAX accidents, Mr. Moak was selected by the Secretary of the United States Department of Transportation to co-chair a special committee to review the Federal Aviation Administration’s aircraft certification process. That committee published a report on January 16, 2020, titled, “Official Report of the Special Committee to review the Federal Aviation Administration’s Aircraft Certification Process,” which is attached hereto as Exhibit 1.
We propose that Mr. Moak attend the trial and be prepared to rebut any testimony offered by other pilots who may testify. Beyond that:
Mr. Moak may testify about the training and responsibilities of a Boeing 737 pilot, including: how a trained pilot uses the equipment in the cockpit—such as the control column (or yoke), thrust levers, autopilot, autothrottles, main electric stabilizer trim, manual stabilizer trim, stabilizer trim wheel, and stabilizer trim cutout switches; that a trained pilot does not need to understand how an airplane is engineered in order to fly it safely; that MCAS is a code or software within the 737 MAX, designed to replicate the feel of the flight controls of the 737 NG in a certain regime of flight; that MCAS was designed to activate outside the normal operating envelope of a commercial flight; that a 737 pilot is trained to respond to appropriate and inappropriate stabilizer trim wheel movement and to not diagnose what is causing the movement; that a trained 737 pilot would not experience MCAS while flying the airplane in normal flight because a pilot who follows normal procedures would not place the airplane in or near a stall situation; and that even if a trained 737 pilot were to experience conditions wherein MCAS could activate, the airplane would be restored to normal flight either automatically or due to the trained pilot’s following proper procedures—such as the QRH/QRC.
Mr. Moak may also testify about the causes of the tragic Lion Air and Ethiopian Airlines accidents. fn1
fn-1 The government alleges that MCAS contributed to the crashes; that Mr. Forkner withheld information about MCAS from the FAA; and that the FAA would have found that information “material.” At the same time, the government does not contend that Mr. Forkner caused the crashes. Without more, that allegation will be confusing to the jury, and we offer Mr. Moak to put the crashes in greater context.
In the case of the Lion Air accident, Mr. Moak would explain that the airline installed a refurbished Angle-of-Attack sensor in the days leading up to the accident and failed to properly calibrate the sensor—such that the sensor transmitted inaccurate information to the airplane's flight control computer. This led MCAS to activate when it was not intended to. Mr. Moak would explain that Lion Air flight crews flying the airplane with the miscalibrated AOA sensor the day or days before the accident: experienced “uncommanded trim” due to the inaccurate information being fed by the miscalibrated AOA sensor; flew the airplane to the route’s destination; landed the airplane; and either failed to alert maintenance to fix the issue or alerted them but maintenance failed to fix the issue. Mr. Moak would explain that this failure violated acceptable, standard maintenance and flight operations procedures. Mr. Moak would also explain that the captain and first officer on Lion Air Flight 610 experienced “uncommanded trim” multiple times during that flight before crashing. But had the AOA sensor been installed correctly, or been fixed after an earlier flight, or had the crew of Flight 610 followed standard procedures in their manual on “uncommanded trim,” there would have been no crash. The standard procedure in their manual called for a response to “uncommanded trim” regardless of the cause of that trim. This is true in the Ethiopian Airlines crash as well.
Mr. Moak may also testify that U.S.-based airline carriers such as American Airlines, Southwest Airlines, and United Airlines did not experience any incidents involving runaway trim on the 737 MAX prior to the Lion Air and Ethiopian Airlines accidents, including any activation of MCAS during flight due to faulty installation of an AOA sensor. Mr. Moak would explain that a U.S.-based airline crew is trained to respond to “uncommanded trim” and would have been able to respond successfully to the conditions in the cockpits on the flights that crashed.
Mr. Moak may also testify about the FAA’s reaction to the Lion Air accident. Specifically, he would explain that after the Lion Air accident, the FAA did not require training on MCAS and instead issued an Airworthiness Directive restating prior QRH/QRC procedure for runaway stabilizer trim—that is to remind pilots to use the stabilizer cutout switches in the event of “uncommanded trim.” In other words, the Airworthiness Directive was a reminder to pilots to follow the training they had already been given. [fn 2 omitted-WR 6-3]
Mr. Moak’s testimony is based on his training; experience; and work as a pilot, pilot representative, and industry consultant in the aviation field for over 40 years. He is type-rated for the 737-NG, with 744 hours as a Captain. Additionally, Mr. Moak’s testimony is based on his work as co-chair of the Department of Transportation’s Special Committee, including flying the conditions experienced in the cockpits of the two aircrafts that crashed, in a MAX simulator."
"Pursuant to the Court’s Scheduling Order (ECF No. 12), Mr. Forkner hereby designates D. Lee Moak as a potential witness who may be construed as an expert under Federal Rules of Evidence 702, 703, and 705.
Lee Moak is a former U.S. Marine and U.S. Navy fighter pilot. With the U.S. Marine Corps (1977–1989), he flew the F-4 Phantom and F-18 Hornet and was progressively promoted through the ranks to Captain. With the U.S. Navy Reserve (1989–2001), he was promoted to Commander. While a pilot at Delta Airlines for 26 years (1988–2014), Mr. Moak flew the Boeing 727, 737, 757, and 767, and L1011. Additionally, he was the Master Executive Chairman of the Delta Master Executive Council (2005–2010) and President of the Air Line Pilots Association, International (2011–2014). Mr. Moak received his BA in Communication Arts from the University of West Florida in 1979.
After the tragic Boeing 737 MAX accidents, Mr. Moak was selected by the Secretary of the United States Department of Transportation to co-chair a special committee to review the Federal Aviation Administration’s aircraft certification process. That committee published a report on January 16, 2020, titled, “Official Report of the Special Committee to review the Federal Aviation Administration’s Aircraft Certification Process,” which is attached hereto as Exhibit 1.
We propose that Mr. Moak attend the trial and be prepared to rebut any testimony offered by other pilots who may testify. Beyond that:
Mr. Moak may testify about the training and responsibilities of a Boeing 737 pilot, including: how a trained pilot uses the equipment in the cockpit—such as the control column (or yoke), thrust levers, autopilot, autothrottles, main electric stabilizer trim, manual stabilizer trim, stabilizer trim wheel, and stabilizer trim cutout switches; that a trained pilot does not need to understand how an airplane is engineered in order to fly it safely; that MCAS is a code or software within the 737 MAX, designed to replicate the feel of the flight controls of the 737 NG in a certain regime of flight; that MCAS was designed to activate outside the normal operating envelope of a commercial flight; that a 737 pilot is trained to respond to appropriate and inappropriate stabilizer trim wheel movement and to not diagnose what is causing the movement; that a trained 737 pilot would not experience MCAS while flying the airplane in normal flight because a pilot who follows normal procedures would not place the airplane in or near a stall situation; and that even if a trained 737 pilot were to experience conditions wherein MCAS could activate, the airplane would be restored to normal flight either automatically or due to the trained pilot’s following proper procedures—such as the QRH/QRC.
Mr. Moak may also testify about the causes of the tragic Lion Air and Ethiopian Airlines accidents. fn1
fn-1 The government alleges that MCAS contributed to the crashes; that Mr. Forkner withheld information about MCAS from the FAA; and that the FAA would have found that information “material.” At the same time, the government does not contend that Mr. Forkner caused the crashes. Without more, that allegation will be confusing to the jury, and we offer Mr. Moak to put the crashes in greater context.
In the case of the Lion Air accident, Mr. Moak would explain that the airline installed a refurbished Angle-of-Attack sensor in the days leading up to the accident and failed to properly calibrate the sensor—such that the sensor transmitted inaccurate information to the airplane's flight control computer. This led MCAS to activate when it was not intended to. Mr. Moak would explain that Lion Air flight crews flying the airplane with the miscalibrated AOA sensor the day or days before the accident: experienced “uncommanded trim” due to the inaccurate information being fed by the miscalibrated AOA sensor; flew the airplane to the route’s destination; landed the airplane; and either failed to alert maintenance to fix the issue or alerted them but maintenance failed to fix the issue. Mr. Moak would explain that this failure violated acceptable, standard maintenance and flight operations procedures. Mr. Moak would also explain that the captain and first officer on Lion Air Flight 610 experienced “uncommanded trim” multiple times during that flight before crashing. But had the AOA sensor been installed correctly, or been fixed after an earlier flight, or had the crew of Flight 610 followed standard procedures in their manual on “uncommanded trim,” there would have been no crash. The standard procedure in their manual called for a response to “uncommanded trim” regardless of the cause of that trim. This is true in the Ethiopian Airlines crash as well.
Mr. Moak may also testify that U.S.-based airline carriers such as American Airlines, Southwest Airlines, and United Airlines did not experience any incidents involving runaway trim on the 737 MAX prior to the Lion Air and Ethiopian Airlines accidents, including any activation of MCAS during flight due to faulty installation of an AOA sensor. Mr. Moak would explain that a U.S.-based airline crew is trained to respond to “uncommanded trim” and would have been able to respond successfully to the conditions in the cockpits on the flights that crashed.
Mr. Moak may also testify about the FAA’s reaction to the Lion Air accident. Specifically, he would explain that after the Lion Air accident, the FAA did not require training on MCAS and instead issued an Airworthiness Directive restating prior QRH/QRC procedure for runaway stabilizer trim—that is to remind pilots to use the stabilizer cutout switches in the event of “uncommanded trim.” In other words, the Airworthiness Directive was a reminder to pilots to follow the training they had already been given. [fn 2 omitted-WR 6-3]
Mr. Moak’s testimony is based on his training; experience; and work as a pilot, pilot representative, and industry consultant in the aviation field for over 40 years. He is type-rated for the 737-NG, with 744 hours as a Captain. Additionally, Mr. Moak’s testimony is based on his work as co-chair of the Department of Transportation’s Special Committee, including flying the conditions experienced in the cockpits of the two aircrafts that crashed, in a MAX simulator."
Join Date: Jan 2016
Location: Uk
Posts: 74
Likes: 0
Received 0 Likes
on
0 Posts
Hmm. Mr. Moak appears to be defending an allegation that MCAS didn't cause the crashes, whereas I thought that the trial was about Mr. Forkner and him misleading regulators.
Confused
Confused
Mr Moak is certainly an expert witness, though I’m not sure what points the defense proposes to enlist his help with. The prosecution may also find this expert witness useful in providing useful testimony too. I wonder if the prosecution would depose him prior to the trial.
It would appear that the defense strategy is to shift the focus from Boeing misleading (or colluding with... ?) the FAA to diverge from established safe design and certification requirements (a crime even if the accidents would not have happened) to discussing the degree to which these actions have contributed to the accidents, which indeed is debatable. Aviation safety rests on two pillars: an inherently safe design, and training to be able to cope with the rare unsafe occurrences. The trial is (or should be) about the first, and hopefully will not be hijacked to be about the second.
You have to love the statement that US trained crews would have successfully resolved the malfunctioning MCAS, immediately diagnosed Runaway Trim and carried out the Memory Items. Mmmm. Despite the not so subtle implication of the superiority of US training, Boeing wilfully sold Max’s to Lion Air, Ethiopian and other 3rd world operators without adequate operational or engineering oversight. The stab trim through STS will move on its own under various FCOM described situations. At what stage do you interpret Runaway Stab? The 737 series, more than adequate in its evolution up to the -300 era should have been surpassed by a mini 787 fbw type. The continued ‘bits bolted on’ has got Boeing to this place with the 737. I agree that you can’t dump the quasi criminal lack of corporate oversight and regulation on one man. The blame goes all the way to the top.
The grandfathering creates the dilemma. Not the best technology but only the maximum level of new stuff permitted is installed to keep the old certification base. You end up with strange combinations of new and old features. Add forward mounted very powerful engines and this is what happens. The MAX will be okay now and integrated FBW aircraft will make future modifications much easier.
Join Date: Jul 2013
Location: Within AM radio broadcast range of downtown Chicago
Age: 71
Posts: 842
Received 0 Likes
on
0 Posts
Beyond the truism that Mr. Forkner is guilty of no criminal act unless and until his guilt - both his actions and his mental state - are proven with admissible evidence beyond a reasonable doubt, I tend to believe he is not crimimally responsible (i.e., he has not committed a crime). Three items in support:
First, he may be guilty of monumentally ill-advised, even stupid, statements about his work, and certainly he did not stand in front of the (metaphoric) speeding locomotive of 737 MAX design, development and certification, holding up a "STOP" signal. Boeing's criminal case plea-bargain reeks of insider favoritism (though no one asked me). To prosecute Mr. Forkner as if a "lesser included" of the sordid, corrupt corporate malfeasnace is indeed a process of snagging a scapegoat. He acted badly, but that is not a crime, and not even in light of his specific role in the Boeing MAX debacle (itself a yet additional act of the multi-part drama, The Decline of the Once-Great).
Second, look again at fn.1 of the defense filing. The defense has argued that what Forkner did improperly relative to any and all contacts, communications and other interactions with FAA, singly and collectively, was not material to any decision (or failure to decide or act) by FAA. It's a significance argument. His mishandling of communications and information really did not make any difference, or not a material one.
Third, though closely related to the first point, Boeing is getting away with all this. Who in the legal profession or the aviation safety ecosystem - if such a thing exists any longer - is agitating for clawing back severance and other financial consideration received by Boeing's former CEO and General Counsel? Not that they should be prosecuted (though minds can differ, reasonably or not, on that point), but to walk away heavy with major warbucks??
First, he may be guilty of monumentally ill-advised, even stupid, statements about his work, and certainly he did not stand in front of the (metaphoric) speeding locomotive of 737 MAX design, development and certification, holding up a "STOP" signal. Boeing's criminal case plea-bargain reeks of insider favoritism (though no one asked me). To prosecute Mr. Forkner as if a "lesser included" of the sordid, corrupt corporate malfeasnace is indeed a process of snagging a scapegoat. He acted badly, but that is not a crime, and not even in light of his specific role in the Boeing MAX debacle (itself a yet additional act of the multi-part drama, The Decline of the Once-Great).
Second, look again at fn.1 of the defense filing. The defense has argued that what Forkner did improperly relative to any and all contacts, communications and other interactions with FAA, singly and collectively, was not material to any decision (or failure to decide or act) by FAA. It's a significance argument. His mishandling of communications and information really did not make any difference, or not a material one.
Third, though closely related to the first point, Boeing is getting away with all this. Who in the legal profession or the aviation safety ecosystem - if such a thing exists any longer - is agitating for clawing back severance and other financial consideration received by Boeing's former CEO and General Counsel? Not that they should be prosecuted (though minds can differ, reasonably or not, on that point), but to walk away heavy with major warbucks??
Last edited by Pilot DAR; 18th Feb 2022 at 16:39. Reason: Typo
Appendix A, Item 6: Mr. Forkner requested any and all evidence, including witness statements, that MCAS and MCAS’s expansion to low speeds was not material to the decision about what level of pilot training should be required for the 737-MAX. Such evidence is obviously exculpatory, since it would negate a critical element of each of the charges against Mr. Forkner. The government, however, simply referred us to “the interview reports and agent notes in this case, including those for both FAA and U.S.-based airlines’ personnel.” In line with the principles set forth above, the government should be compelled to specifically identify the witnesses who made such statements and the particular statements that they made, rather than simply pointing to a mass of discovery.
_________
I don't believe that the FAA acted with malice or otherwise, but I can state categorically that the issue of stability arising in the flight test was pretty much known by the govt, and it seems pretty mean spirited to hold to account Mr Forkner when te FAA was aware that a problem had arisen and had been fixed in the flight test. The FAA asserts that it had awareness of the MCAS as a stability matter in the pre-first flight high-speed wind-up case, but not later, yet, they were aware of a stability issue in the flight test phase of certification.
I think that chasing a pawn (Forkner) and letting the bosses literally get away with the deaths of 346 people due to their greed is unconscionable. I also think that the FAA staff are professional but have had poor "corporate" guidance and have been placed in an untenable position.
As an outsider I was aware of a stability issue that came up in testing, I had to play "who am I?" to work out what the issue was, and then to put in a white paper about whether the Max would behave the same with my own STC as all of the others in the line-up. It was not rocket science to work back and guess the issue that had cropped up, if I had been doing the PSCP, that would have been one of the more obvious issues to raise. In the end, our STC mod would not alter the outcome of the Max, and how Boeing had dealt with the stick force gradient was never disclosed to us, and nor should it have been. Pity.
I have suggested previously, that the Max longitudinal stability issue could have been mitigated by reducing the nacelle vane size, and any "economic" losses could have been more than compensated by TBC through some minor alteration of the TE of the flaps. The upside of doing the TE mod would be to reduce cruise drag, (ask Joe Sutter... ) and a slight shift rearwards of CP in the inner wing area, while shifting the spanwise lift distribution inboard, they happen to cancel each other out, and can be tuned to give eye-pleasing static stability at least. That mod would also improve the wing bending moment for the sluf design, which is getting pretty long in the fangs. The TE mod also happens to stabilize the loads on the flap tracks that the renditions of the 737 have always suffered from. Randolph's treatise on that little bit of design is good bedtime readin', while you are awaiting the gators to come up in the spotlights of the F-150 dual cab (dual cab as you can put more gun racks in there, cuz what's the fun of being outgunned by a hedgehog...., god bless the 2nd amendment, but 'scuze me, the term regulated militia seems to have slipped from the old parchment in it's readin'.) The Vs1g speed gets reduced, which is good for the clown in Chicago who apparently has a laser focus on shareholder value, and the most annoying thing about the B737 (not just my opinion, ask Pete K.C. Rudolph)#, reducing the approach speed to a manageable value would be nice and save some RESA rebuilding.
The corporate management of Boeing since 1997 at least gives ideas for what to do with goats other than curry and fetta cheese.
I doubt that Mr Forkner held his breath for 5 years in a vacuum, yet that is what the charges against him are apparently expecting the jury to believe.
I hope Boeing starts a greenfield single-aisle aircraft, one that has a round barrel, that takes LD-3's and uses CFRP rationally. Given the history, I would be placing my bet on Airbus instead.
# Rudolph, Peter K.C., High-Lift Systems on Commercial Subsonic Airliners, NASA Contractor Report 4746, Nasa Ames Research Center, Moffet Field, CA, Sept 1996 Contract A46374D(LAS)
Last edited by fdr; 21st Feb 2022 at 23:50. Reason: incorrectly spelt Peter K.C. Rudolphs surname. added ref in abject apology