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A Washington federal judge on Thursday decided which evidence can be used in the upcoming Nov. 3 trial of LOT Polish Airlines’ lawsuit against Boeing, a high-stakes case accusing the aerospace titan of misleading the carrier into leasing defective 737 Max jets — aircraft later grounded worldwide after two fatal crashes that killed more than 300 people.

U.S. District Judge Ricardo S. Martinez granted LOT permission to use congressional testimony in which Boeing executives admitted the company made “mistakes,” along with an internal whistleblower complaint from a former Boeing engineer. Jurors will also see portions of critical reports from a U.S. House committee and the Federal Aviation Administration on the troubled jet.

However, the judge refused to let LOT introduce accident reports from the 2018 Lion Air and 2019 Ethiopian Airlines crashes, saying, “there is a real risk of undue prejudice in diving into the details.”

Boeing’s Deferred Prosecution Agreement on the Table — Partially

Judge Martinez ruled that LOT can refer to Boeing’s 2021 deferred prosecution agreement and 2025 nonprosecution agreement with the U.S. Department of Justice, both tied to the government’s criminal probe into the 737 Max. But he restricted LOT from submitting the entire documents, noting that their inclusion would “confuse the jury” and prove “cumulative or unnecessary.”

The court will decide on excerpts case by case during trial.

LOT will also be allowed to use evidence from a U.S. House committee report and an FAA-commissioned review, which Boeing had dismissed as biased. The judge found Boeing’s objections too vague, remarking that its attacks lacked “specifics or substantiation.”

Whistleblower Complaint and Witness Testimony Admitted

In another blow to Boeing, the court rejected its bid to exclude testimony from FAA investigator David Gerlach and whistleblower Curtis Ewbank, a former Boeing engineer who filed an internal ethics complaint about the 737 Max. The judge ruled the complaint qualifies as a legitimate internal business record, not hearsay.

Judge Martinez also approved LOT’s motion to bar Boeing from referencing the termination of former LOT CEO Rafal Milczarski, finding the matter “more prejudicial than probative.”

Congressional testimony from former Boeing CEO Dennis Muilenburg and Chief Engineer John Hamilton, both of whom conceded to “mistakes” in the 737 Max program, will be shown to jurors — despite Boeing’s objections that it could sway them emotionally.

Evidence Scope and Confidentiality Issues

The judge stopped short of broadly excluding evidence about the 737 Max’s design flaws, saying Boeing’s concerns about cumulative exhibits could be handled during trial.

He also deferred ruling on LOT’s motion to restrict settlement discussions from being mentioned at trial but said any evidence derived solely from those talks will be excluded.

Addressing Boeing’s request to limit media access, Judge Martinez declared the courtroom will remain open, though certain exhibits may not be displayed on public monitors.

The Case That Could Shake Boeing

LOT Polish Airlines filed the $250 million suit in October 2021, alleging Boeing overstated the safety, performance, and fuel efficiency of the 737 Max. The jets were grounded globally for nearly two years following the crashes.

Boeing’s controversial MCAS flight control system was later found to be vulnerable to sensor malfunctions that could cause fatal nose-dives.

Judge Martinez had previously refused Boeing’s 2022 dismissal motion and cleared the case for trial earlier this month, setting the stage for a courtroom battle that could reopen scrutiny over the 737 Max’s troubled legacy.

LOT Polish Airlines is represented by Condon & Forsyth LLP, while Boeing is represented by Perkins Coie LLP.