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Missing MH370: How Do You Sue When There's No Wreckage?

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A U.S. law firm claiming to represent several of the Flight 370 families said Thursday that it hopes to prove that the Boeing 777 fleet has a design defect – even as investigators struggle to locate a single piece of wreckage.

Monica Kelly, head of global aviation litigation at Ribbeck Law, told NBC News she was meeting families in Beijing “at their request,” hours after the firm filed a petition at a Chicago court against Boeing, seeking evidence of possible design and manufacturing defects that it believes will form the basis of a lawsuit.

The move has raised eyebrows, even among seasoned observers of litigation specialists who approach the victims of air disasters. It has also prompted some to ask how it is even possible to start forming a lawsuit on behalf of families before a single victim has been found.

"We see this sort of thing all the time," said James Healy-Pratt, an attorney with Stewarts Law who represented some of the families of Air France Flight 447. "It's entirely possible. They do it in order to get publicity and to encourage families to sign up. The question is whether it is sensible."

The Boeing 777 “has probably been one of the safest aircraft in aviation history,” according to one aviation expert.

An initial action could be amended or withdrawn as more information comes to light, he said.

“It’s not against the law to file a lawsuit,” said lawyer Gerard Lear with Speiser Krause, a specialist firm that has been involved in cases following most major air disasters. “But doing so before you’ve even found the wreckage seems to be highly speculative.”

Indeed, the National Transportation Safety Board last year said it had received an unspecified number of complaints about solicitations in the wake of the July 6 Asiana crash at San Francisco airport. At least one pof the complaints involved was Ribbeck Law.

The NTSB told NBC Chicago last year that it had reported the company to the Illinois agency that regulates attorneys. Nobody at the NTSB was available to comment Thursday about the outcome of last year's complaints or the latest case.

A U.S. law bars uninvited solicitation of air disaster victims in the first 45 days after an accident, but it was not immediately clear how that would apply in other jurisdictions.

Healy-Pratt said it was unlikely that families could successfully sue Boeing in the United States even if an eventual investigation found the manufacturer responsible. “I think it is highly misleading to tell the families they might get additional compensation in the United States when all of the recent accidents prove otherwise,” he said.

He said most cases were settled in the courts of the country where accidents occur, or where the airline involved is based.

All 239 people on the plane — 227 passengers and 12 crew — are assumed by Malaysian authorities to be dead. Under the Montreal Convention, the airline must pay the families minimum compensation of $176,000. Malaysia Airlines has already paid an interim $5,000.

Extracting further damages, such as claims for negligence based on the findings of investigators, is a more opaque process – and likely less lucrative outside of the United States. “Getting punitive damages” of the kind often awarded in U.S. courts “is highly doubtful” for the families of MH370, said Healy-Pratt.

However, that hasn’t deterred Kelly, who said she intends to meet other families in Beijing.

“We already have agreements with several of the families,” she said. “It takes a little time to meet all of them. We expect to represent at least 50 percent of the passengers in this case.

“We believe that we are going to be able to prove that the fleet of the Boeing 777 has a design defect with the fuselage, with cracks in the fuselage, so we don't really need to wait for the official investigators or for the wreckage of the plane, of course it would be good to have it.”

It appeared she was referring to a federal airworthiness directive issued in response to a cracking and corrosion problem found close to the satellite antenna on several Boeing 777s. However, the aircraft involved in the Malaysia crash had a different antenna system and was not affected by the directive.

The Boeing 777 “has probably been one of the safest aircraft in aviation history,” according to Neil Hansford, the chairman of consultancy firm Strategic Aviation Solutions and a former air freight executive.

Boeing declined to comment on Ribbeck’s planned lawsuit. In a statement, Malaysia Airlines said it was "aware of the lawsuit and our lawyers have been advised of this development," adding: "At this point in time, our top priority remains to provide any and all assistance to the families of the passengers and crew. Other matters will be dealt with appropriately."

At Ribbeck’s offices in downtown Chicago Thursday, there was no immediate response to messages left by NBC News.

Eric Baculinao in Beijing and Laura Saravia in London contributed to this report.

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