Summary
finding that a comfortable seat with a leg rest is not an unexpected or unusual event in business class
Summary of this case from Plonka v. U.S. AirwaysOpinion
Case No. A01-0329 CV (JKS)
November 17, 2003
ORDER
INTRODUCTION
This is a personal injury suit filed by Plaintiff Richard Louie against Defendants British Airways, Alaska Airlines, the Boeing Company, and Dr. David McGuire for claims arising out of a stroke Louie suffered in London, England, a day after he traveled there from Anchorage, Alaska. Following Louie's nonopposition to a motion for summary judgment by Boeing, judgment has been entered in favor of Boeing. Docket No. 93. Currently before the Court are two motions for summary judgment, one brought by British Airways and one brought by Alaskan Airlines, Inc., to establish that Louie's stroke was not an "accident" within the meaning of the Warsaw Convention. Docket Nos. 66 (Mot. British Airways); 87 (Opp'n); 90 (Reply); 69 (Mot. Alaska Airlines); 88 (Opp'n); 89 (Reply).
Alaska Airlines was incorrectly captioned in Louie's original complaint as "Alaskan Airways, dba Alaskan Airlines." See Docket No. 1.
After the parties filed these motions, British Airways filed three notices of pertinent authority, and Louie filed two separate motions to supplement his opposition to Defendants' summary judgment motions, which, not surprisingly, were opposed by British Airways and Alaska Airlines. See Docket Nos. 95 (Not. of auth.); 97 (Mot. to supp. opp'n); 98 (Opp'n); 100 (Mot. to supp. opp'n); 103 (Opp'n); 105 (Not. of auth.); 107 (Not. of auth.). The Court has reviewed and taken into consideration all of the parties' original arguments, as well as the those submitted subsequently, in ruling on the motions.
There is also a motion to compel Louie's medical records brought by British Airways, Docket Nos. 85 (Mot.); 92 (Opp'n); 94 (Reply). Oral argument has been requested on a number of the parties' motions. Docket Nos. 67; 86. And finally, Dr. McGuire has filed a motion for summary judgment. Docket No. 101. However, Dr. McGuire has since withdrawn his motion for summary judgment without prejudice, Docket No. 108, and therefore, the Court need not address any issues the motion may have raised. The remaining motions are discussed below.
The Court has considered these requests. After a review of the record, it appears that the parties have sufficiently briefed the issues to the extent that oral argument will not be helpful. See D. Ak. LR 7.2(a)(3)[B]; United States v. Cheely, 814 F. Supp. 1430, 1436 n. 4 (D. Alaska 1992), aff'd, 36 F.3d 1439 (9th Cir. 1994).
FACTUAL AND PROCEDURAL BACKGROUND
The following material facts are taken as true for purposes of the pending motions. On January 24, 2000, Louie was sent by his employer, British Petroleum ("BP"), from Anchorage to London for a seminar. On January 19, 2000, before leaving Anchorage for London, Louie consulted with his physician, Dr. David McGuire, regarding whether it was safe to travel in light of knee surgery that Dr. McGuire had recently performed on Louie on January 4, 2000. Docket No. 1 at 3. Dr. McGuire had previously warned Louie of the risk of blood clots as a complication of surgery and provided Louie with exercises to aid his recovery. But he did not warn Louie of any increase in risk of blood clots associated with international travel, and he told Louie it would be fine if he traveled to London. Id.; Docket No. 66, Ex. B (Dep. Dr. McGuire, fifth Exhibit B) at 13, 19.
On January 24, 2000, Louie traveled from Anchorage to Seattle on Alaska Airlines, Seattle to Vancouver on Horizon Air, and Vancouver to London on British Airways. Docket No. 66 (Mem.) at 7. Louie was in economy class seating from Anchorage to Vancouver and in business class from Vancouver to London. Id. The seat in business class was a "cradle" seat, economically designed to allow for further reclining than regular economy class seating. Id., third Ex. B at 3. Louie did not perform the exercises provided by Dr. McGuire during any of the flights or on any of the layovers. Id. (Dep. Louie, fifth Exhibit A) at 17-19. Louie's knee felt stiffer at some point in his travels, but he did not mention it to any of the flight crew or ground staff. Id., sixth Ex. A at 47.
Louie arrived in London on January 25, 2000, and was driven to the hotel where he stayed for the rest of the day and where he performed some of his leg exercises. Id. (Mem.) at 10. The following day, January 26, 2000, Louie was in his seminar all day, had dinner with colleagues, called his wife around 11:00 p.m., and then went to bed. Id. (Mem.) at 10-11. When he did not show up the next morning for the seminar, his colleagues went to his room to look for him. Id. (Dep Margaret Louie, fourth Exhibit D) at 6. Louie did not respond to knocking on his door, but the door was locked from the inside, so they knew he was inside. Id. Hotel staff eventually opened the door and found Louie collapsed on the floor. Id. He was taken to the hospital where he was diagnosed as having suffered a stroke. Id., fourth Ex. D at 4-5.
The cause of the stroke is disputed. Louie asserts that he suffered from a deep vein thrombosis ("DVT") — a blood clot that forms in the lower extremities — and that because of a preexisting condition Louie has called Patent Foramen Ovale, a hole in his heart, the clot passed through his heart to his brain, causing his stroke. Docket No. 1 at 5. The initial diagnosis at the hospital, however, was that the stroke was caused by a carotid dissection — a tear in the large artery in the neck that blocks blood flow — and not a DVT. Docket No. 66, fourth Ex. D at 4-8. The issue of causation has been reserved pending a decision on the issue of whether the incident was an "accident," as well as further discovery. Docket No. 81.
JURISDICTION
Louie has alleged jurisdiction pursuant to 28 U.S.C. § 1332, claiming that the parties are diverse and the amount in controversy exceeds $75,000. Docket No. 1 at 1. And yet, in his complaint, Louie states that both he and Defendant Dr. McGuire are residents of Alaska. Id. at 1-2. "When a plaintiff sues more than one defendant in a diversity action, the plaintiff must meet the requirements of the diversity statute for each defendant or face dismissal." Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 829 (1989); see also Lee v. Am. Nat'l Ins. Co., 260 F.3d 997, 1004 (9th Cir. 2001). However, even though diversity jurisdiction is not applicable, there appears to be a federal question arising under a treaty of the United States that would provide jurisdiction for those claims pursuant to 28 U.S.C. § 1331. It is undisputed that the incident at issue occurred on an international flight and that liability for incidents on international flights is controlled by the Warsaw Convention. See Docket No. 16 at 5. The Ninth Circuit Court of Appeals has held that the Warsaw Convention does provide a cause of action such that jurisdiction is valid pursuant to 28 U.S.C. § 1331. In re Mexico. City Aircrash of October 31, 1979, 708 F.2d 400, 412 (9th Cir. 1983). Jurisdiction over the claims against Dr. McGuire are supplemental. See 28 U.S.C. § 1367.
British Airways has also alleged that Louie is a resident alien of the United Kingdom, and that as such there is no diversity because British Airways is a United Kingdom corporation. Docket No. 21 at 2. Section 1332 of Title 19 of the United States Code does not confer jurisdiction where a plaintiff is a citizen of the United States but is domiciled in another country. See Newman-Green, Inc. v. Alfonzo Larrain, 490 U.S. 826, 829 (1989). Thus, whether Louie is a resident of Alaska or a resident alien of the UK, there is not complete diversity among the parties in this case.
DISCUSSION
Louie asserts that the circumstances of his case constitute an "accident" within the meaning of Article 17 of the Warsaw Convention; British Airways and Alaska Airlines disagree. In opposition to earlier motions to dismiss by Defendants, Louie alleged that it was a DVT that caused his stroke and that the DVT may have been caused by a broken seat. Docket Nos. 16 at 7-10; 28 at 7-10. Louie alleged that the seat was broken because the cushion was so worn that it became compressed, restricting his circulation and causing the DVT that went to his brain. Id. Louie also alleged that the airlines' failure to warn him of the risk of DVT associated with long periods of sitting is an "accident" within the meaning of Article 17. Id. Louie argued that discovery would provide him with the facts necessary to amend his complaint to reflect whatever an investigation of the seat might turn up, as well as actions taken by the air crew that may have aggravated his condition. Id. The Court denied Defendants' motions to dismiss and allowed Louie an opportunity for discovery and to amend his complaint. Docket No. 33.
Discovery has occurred, and Louie has not amended his complaint. He has, however, altered his "broken seat" argument. Discovery did not establish that the seat Louie sat in was worn or compressed. Louie now alleges that the design of the leg rest restricted blood flow to his legs and that the seat was so comfortable he did not want to get up. Docket Nos. 87 at 11; 88 at 12. He contends that both of these attributes should be considered an "accident." Docket Nos. 87 at 19-23; 88 at 17-23. Discovery has established that the flight crew did not act or fail to act — other than a failure to warn — in any way that caused or contributed to Louie's condition. He developed no symptoms other than a stiffening in his knee during the flight, and he did not report or complain to the flight crew or any other employee of the airlines. Instead, Louie now argues that the airlines knew about the increased risk of DVT during air travel and that consequently it should have been an industry standard that airlines should warn of the risk. Docket Nos. 87 at 3-5; 88 at 3-4. The airlines' failure to do so, according to Louie, was a violation of that standard and should be considered an "accident."
I. The Warsaw Convention
A. History and Purpose of the Warsaw Convention
The Warsaw Convention was drafted in the late 1920s, and the United States approved it in the early 1930s. Andreas F. Lowenfeld Allan I. Mendelsohn, The United States and the Warsaw Convention, 80 Harv. L. Rev. 497, 498, 502 (Jan. 1967). The dual purposes of the Warsaw Convention were to establish uniformity for passenger recovery arising from accidents occurring during international air travel and to limit liability for the fledgling international air carrier industry. Id. at 498-99. The Warsaw Convention has been amended numerous times over the years, but the United States has not been a party to most of the amendments, with the exception of the Montreal Protocol No. 4. Allan L Mendelsodn Renee Lieux, The Warsaw Convention Article 28, the Doctrine of Forum Non Conveniens, and the Foreign Plaintiff, 68 J. Air L. Com. 75, 77 (Winter 2003).
The Montreal Protocol No. 4 provides requirements for cargo documentation, which are inapplicable to the present case. Lowenfeld Lieux, supra, at 82.
The Montreal Protocol No. 4 is not to be confused with the Montreal Convention of 1999, which may go into effect some time in 2003. Patrick J. Keating, et al, Recent Developments in Aviation and Space Law, 38 Tort Trial Ins. Prac. LJ. 205, 216 (Winter 2003). The major change wrought by the Montreal Convention is that it provides an additional basis for jurisdiction. Id. The requirement of an Article 17 "accident" as a prerequisite to suit remains the same. Id. By 2001, the agreement had been signed by all air carriers providing service to and from the United States. Id.
B. Article 17 of the Warsaw Convention
In an effort to create uniformity of law for international air carriers, Chapter III of the Warsaw Convention, Article 17 provides liability for personal injury and death in the following circumstances:
The carrier shall be liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which cause a the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking.
The Convention for the Unification of Certain Rules Relating to International Transportation by Air, Oct. 12, 1929, 49 U.S.C. § 40105 note, Art. 17 (hereafter the "Warsaw Convention"). Thus, a prima facie case for personal injury or death brought pursuant to the Warsaw Convention requires proof of "(1) an `accident,' (2) [that] `took place on board the aircraft or in the course of operations of embarking or disembarking,' (3) which `caused,' (4) an `injury.'" McCaskey v. Cont'I Airlines, Inc., 159 F. Supp.2d 562, 569 (S.D. Tex. 2001) (citation omitted). At issue in the summary judgment motions presently before the Court is whether Louie's stroke was caused by an accident.
After careful consideration of the Warsaw Convention, its text, structure, and purpose, the United States Supreme Court in Air France v. Saks, 470 U.S. 392 (1985), concluded that the term "accident" means an "unexpected or unusual event or happening that is external to the passenger." Id. at 405. The Supreme Court further provided that "when the injury indisputably results from the passenger's own internal reaction to the usual, normal, and expected operation of the aircraft, it has not been caused by an accident, and Article 17 of the Warsaw Convention cannot apply." Id. at 406. Whether an incident is an accident "involves an inquiry into the nature of the event which caused the injury rather than the care taken by the airline to avert the injury." Id.
Additionally, the definition of accident is to be "flexibly applied after assessment of all the circumstances surrounding a passenger's injuries." Id. at 405. For example, in Saks a passenger went deaf in one ear as the result of an abnormal reaction to the normal pressurization of the airplane on an international flight. Id. at 394. The Supreme Court held that the hearing loss was "indisputably [a] result from the passenger's own internal reaction to the usual, normal, and expected operation of the aircraft," and thus not an accident, precluding imposition of liability on the air carrier. Id. at 396, 406. The Supreme Court has also held that the Warsaw Convention is the exclusive basis for imposing liability on international air carriers. El Al Israel Airlines, Ltd. v. Tseng, 525 U.S. 155, 161 (1999). To preserve the uniformity of law sought by ratification of the Warsaw Convention, the Supreme Court in Tseng made the Warsaw Convention the exclusive remedy against international air carriers for accidents incurred during international air travel. Id. Thus, when there is no "accident" under Article 17, there is no other basis for liability. Id.
Numerous cases have addressed the definition of "accident" under the Warsaw Convention. Different jurisdictions have provided a varied and often conflicting analysis on what constitutes an accident. When the Saks Court provided a fairly narrow definition of accident, plaintiffs were still able to bring state law claims separate from a Warsaw claim. Consequently, plaintiffs often argued for a narrow definition of "accident" so as to avoid the limits on liability and the time limits for bringing claims applicable to Warsaw claims. By contrast, the airlines generally argued for a broad definition to take advantage of the Warsaw Convention's limits on liability. However, when the Supreme Court decided Tseng, which held that the Warsaw Convention is the exclusive remedy preempting all other claims, the parties traded arguments. See McCaskey, 159 F. Supp.2d at 573. The airlines now typically argue for a narrow definition of "accident" because if an incident is not an accident, there is no other basis for recovery. Plaintiffs, on the other hand, try to get a broader definition of accident applied to encompass their particular situation. Many of these decisions are applicable to Louie's case and are discussed below.
C. Whether the circumstances surrounding Louie's stroke constituted an "accident" under the Warsaw Convention
Louie essentially urges this Court to find that a claim of negligence — failure to warn and/or providing seats that contribute to the risk of developing DVT — fits within the Warsaw Convention's definition of "accident." Louie argues that this Court should follow a theory of risk apportionment to find that the airline is in the best position to be aware of the risk of DVT and that because the costs to warn passengers are so minimal in comparison to the consequences, the airlines should be held responsible for the failure to warn in this case. By contrast, the airlines point out that this case is controlled by treaty and not common law. Consequently, argue the airlines, the signatories of the treaty struck a balance in favor of uniformity and have thus rejected the common law notion of risk apportionment.
The undisputed starting point is the definition of "accident" provided in Saks. The Saks Court made the following observations in its discourse on the definition of accident:
We recognize that any standard requiring courts to distinguish causes that are "accidents" from causes that are "occurrences" requires drawing a line, and we realize that reasonable [people] may differ widely as to the place where the line should fall. We draw this line today only because the language of Articles 17 and 18 requires it, and not because of any desire to plunge into the "Serbonian bog" that accompanies attempts to distinguish between causes that are accidents and injuries that are accidents. Any injury is the product of a chain of causes, and we require only that the passenger be able to prove that some link in the chain was an unusual or unexpected event external to the passenger. Until Article 17 of the Warsaw Convention is changed by the signatories, it cannot be stretched to impose carrier liability for injuries that are not caused by accidents. It remains "[o]ur duty . . . to enforce the . . . treaties of the United States, whatever they might be, and . . . the Warsaw Convention remains the supreme law of the land."Saks, 470 U.S. at 406 (brackets and omissions in original, citations omitted). Because the definition of "accident" is to be flexibly applied to the particular facts and circumstances of each case, id. at 405, the results have varied widely.
As an initial matter, it is important to isolate which incident is at issue — the failure to warn of the increased risk of DVT during air travel, the actual forming of a DVT, or the stroke. In this case, the stroke is not the "event" because the Warsaw Convention requires that the accident occur on the airplane or in the process of embarking or disembarking. Louie's stroke did not occur until over a day following Louie's air travel. Louie argues that the omission or failure to warn and/or the comfortable seat with leg rest was the event. He is mistaken. First, a comfortable seat with a leg rest is not an unexpected or unusual event in business class and thus cannot qualify as an accident. Second, as the following analysis will show, a failure to warn — in the absence of an established industry standard to do so — cannot constitute an unexpected or unusual event. Consequently, Louie's stroke was not caused by an accident as that term has been defined in the context of the Warsaw treaty.
Louie relies primarily on Husain v. Olympic Airways, 316 F.3d 829 (9th Cir. 2002) (holding that a flight attendant's repeated refusal to move a passenger a seat farther from the smoking section, and the subsequent death of the passenger from an asthma attack, can constitute an accident), Blansett v. Continental Airlines, Inc., 246 F. Supp.2d 596 (S.D. Tex. 2002) (holding that a failure to warn of DVT risk in violation of an alleged industry standard can constitute an accident), and Fulop v. Malev Hungarian Airlines, 175 F. Supp.2d 651 (S.D.N.Y. 2001) (holding that a failure to divert a flight and get medical attention for a passenger suffering a heart attack can constitute an accident), to support his argument that his stroke was caused by an accident within the meaning of Article 17. By contrast, the airlines rely primarily on decisions from courts that have directly addressed the issue of failure to warn of the risks of DVT. These cases have uniformly, with the exception of Blansett, held that such failure to warn does not constitute an accident within the meaning of the Warsaw Convention. See Deep Vein Thrombosis, Air Travel Group Litigation, EWCA Civ. 1005, 2003 WL 21353471 (No. B/2003/0386, July 3, 2002) (attached at Docket No. 96, Ex. A) (holding that a failure to warn of the risk of DVT is not an accident); Rodriguez v. Ansett Australia Ltd., No. 01-7882, 2002 WL 32153953 (C.D. Cal. Aug. 8, 2002) (attached at Docket No. 69, Ex. E at 1) (holding that DVT is not caused by an unusual or unexpected event external to a passenger); McDonald v. Korean Air, No. 01-B30373, 2002 WL 1861837 (Ont. S.C.J. Sept. 18, 2002) (same); Toteja v. British Airways PLC, No. JFM-99-815, 1999 Lexis 17374 (D. Md. Sept. 10, 1999) (holding that cramped seating causing swelling in legs is not an unusual or unexpected event); Van Luin v. KLM Airlines, No. 10377, Dist. Ct. N.S.W. at Sydney, Austl. (2001) (attached at Docket No. 69, Ex. H at 11) (same).
While courts have unanimously held that pre-existing medical conditions that cause illness on a flight are not accidents, see, e.g., Fishman v. Delta Air Lines, Inc., 132 F.3d 138, 141 (2d Cir. 1998), some courts have held that the flight crew's failure to respond appropriately to the illness can constitute an accident. For example, in Fishman, an infant was burned when a flight attendant provided a scalding hot compress for the infant's earache. The flight crew also refused to provide any first aid for the burns. Id. at 140. The earache — to which the infant was predisposed — was caused by the change in air pressure while descending. Id. at 142. Because Fishman was decided prior to the Tseng Court's holding that the Warsaw Convention is the exclusive remedy for injuries that occur on international flights, the plaintiff argued that the incident was not an accident to avoid the time limit provided in the Convention for bringing a claim. Thus, the plaintiff relied on a line of cases that held that an airline's negligence in providing medical attention does not come within the meaning of the term "accident." Id.
The district court, however, distinguished the cases cited by the plaintiff, finding that although the earache was an internal reaction to the normal operation of the aircraft and not an accident, the injury at issue was the application of scalding water by the flight attendant. Therefore, the incident constituted an accident because it was an unexpected event external to the infant. Id. at 141. The action was consequently dismissed as untimely because it was subject to the Warsaw Convention's time limit for bringing an accident claim. Id. at 140. The circuit court affirmed and noted that an injury resulting from routine procedures during the operation of an aircraft can be considered an accident if those procedures are carried out in an unreasonable manner. Id. at 141-42.
The court in Fulop v. Malev Hungarian Airlines, 175 F. Supp.2d 651 (S.D.N.Y. 2001), came to a similar conclusion. There, the plaintiff suffered a heart attack, and the flight crew failed to divert the plane to get him medical attention. Id. at 652, 663-64. The court held that the flight crew's decision to not divert the plane when the plaintiff complained of chest pains aggravated his condition and could be considered an accident within the meaning of the Warsaw Convention. Id. at 663-64. The Fulop court noted that prior to Tseng, cases such as Fishman that interpreted the term accident provided a more restrictive definition when it was known that plaintiffs generally fared better if their claim did not come within the Warsaw Convention. This outcome was so because plaintiffs were not subject to the Convention's limits on liability prior to the Tseng holding. After Tseng, plaintiffs were precluded from all recovery if their claim was not considered an accident. Id. at 666. The Fulop court held that, like the scalding water given by a flight attendant to alleviate an earache in Fishman, the flight crew's failure to divert the plane "was not an internal reaction to the normal operation of the aircraft and its effect on the passenger's illness. Rather, the unusual and unexpected occurrence that caused the injury was the flight crew's departure from what objectively could be expected conduct on the part of the airline and its personnel." Id. at 668.
Several courts have held that the flight crew's response to an otherwise internal event may be considered an accident. See Fishman, 132 F.3d at 141 (holding that burns received from the scalding hot water of a compress provided by a flight attendant for a passenger's earache constituted an accident); Fulop, 175 F. Supp.2d at 664-65 (finding that there was a question of fact as to whether the flight crew's failure to divert a plane to provide medical assistance to a passenger having a heart attack constituted an accident); Carey v. United Airlines, Inc., 77 F. Supp.2d 1165, 1170 (D. Or. 1999) (finding that a flight attendant's rude behavior could be considered an accident, but finding that the second requirement of Article 17, that the accident caused bodily injury, was not met). But discovery in Louie's case did not point to any conduct by the flight crew that would support such a claim.
Like Fishman and Fulop, the Ninth Circuit in Husain v. Olympic Airways, 316 F.3d 829 (9th Cir. 2002), held that a flight crew's failure to act could constitute an accident. In Husain, a passenger seated near the smoking section suffered an asthma attack that resulted in his death. In a trial by court, the court determined that the flight attendant's failure to move the victim, despite three separate requests by the victim's wife, who explained that her husband was sensitive to smoke and needed to be moved, constituted an accident. Id. at 836. The Ninth Circuit affirmed the district court's holding that "[t]he failure to act in the face of a known, serious risk satisfies the meaning of `accident' within Article 17 so long as reasonable alternatives exist that would substantially minimize the risk and implementing these alternatives would not unreasonably interfere with the normal, expected operation of the airplane." Id. at 837. The court noted with approval the lower court's findings that the failure to move the victim violated both industry standards and the airline's own policy; that the flight attendant denied several requests for assistance and was aware of the threat to the victim's health; and that the request could have been met easily. Id. at 837. For all these reasons, the Ninth Circuit held that the failure to act was an accident.
Defendants have appealed to the United States Supreme Court and certiorari has been granted. Olympic Airways v. Husain, 123 So. Ct. 2215 (2003).
Following Fishman, Fulop, and Husain, the district court in Blansett v. Continental Airlines, 246 F. Supp.2d 596 (S.D. Tex. 2002), held that an airline's failure to warn of the risk of DVT can constitute an accident. Id. at 600. The Blansett court noted that both Fulop and Husain were premised on violations of both internal policies as well as industry standards. Id. at 601. The court nonetheless found that even though Continental did not have an internal policy of warning about the risks of DVT, a violation of an industry standard was sufficient to constitute an accident. Id. To find an industry standard, the court relied on an affidavit by Farrol Kahn — an asserted expert in aviation medicine — who admittedly possessed no medical background. Id. at 601-02. Kahn submitted a memo to the court circulated by the airline industry association just months prior to the incident. The memo stated that travelers should be warned of the risk of DVT at the time of reservation. Id. at 602 n. 7. The court found that the memo was enough to create a question of fact regarding whether a violation of an industry standard occurred. Id. at 602.
The Blansett decision is unpersuasive for two reasons. First, Blansett went further than it had to when it found an accident based on a violation of an alleged industry standard. There was evidence in the record that the flight crew responded unreasonably to the medical emergency. Specifically, the stroke took place while the plaintiff was onboard the airplane, but Continental did not allow an onboard physician to examine the passenger as he became visibly ill, the flight crew failed to consult with any other medical service, and Continental failed to relay important information to the hospital where the passenger was treated. Id. at 597 n. 2. Despite this evidence, which would more closely align Blansett with Fulop, Fishman, and Husain — where the negligent response of the flight crew to a medical emergency was held to be an accident — the court instead relied solely on the violation of an alleged industry standard to deny Continental's motion for summary judgment, holding that the issue was a question of fact.
Second, and perhaps most importantly, the court expanded the definition of "accident" beyond what existing authority supports. The court commented that "[a]s a result of this stroke, 36-year-old Shawn Blansett, who was once an able-bodied husband, father, and corporate executive earning a six-figure salary, is now bound to a wheelchair, unable to walk or talk normally, or even take care of his own basic needs." Id. The court also noted that
[s]afety in a technically evolving industry, such as air travel, can and must keep up with reasonable and practical industry practices. This is especially true where, as here, no real expense is even involved. This case does not require an expensive or intrusive retrofit or equipment exchange. It involves nothing more than the reprinting of safety placards and a thirty-second oral announcement once or twice in each long flight.Id. at 601. From this language it is clear that the Blansett court improperly relied on common law principles of standard of care and risk apportionment, rather than a construction of the Warsaw Convention, to define the term "accident." Compare Saks, 470 U.S. at 407 (whether incident is an accident "involves an inquiry into the nature of the event which caused the injury rather than the care taken by the airline to avert the injury").
A British appellate court recently examined the issue of the failure to warn of DVT, as well as the Blansett decision, and whether such a failure constitutes an accident within the meaning of the Warsaw Treaty. Deep Vein Thrombosis, Air Travel Group Litigation, EWCA Civ. 1005, 2003 WL 21353471 (No. B/2003/0386, July 3, 2002) (hereafter "Docket No. 96, Ex. A"). The British appellate court affirmed a lower court's finding — based on an extensive analysis of case law and the treaty's text, structure, and history — that a failure to warn of the risks of DVT and cramped seating do not constitute an accident. The lower court critically reviewed the decisions in Fulop, Husain, and Blansett and found that they were either not controlling or unpersuasive. Deep Vein Thrombosis, Air Travel Group Litigation, 2002 WL 317 84484 (Dec. 20, 2002) (hereafter "Docket No. 69, Ex. F').
The lower court distinguished Fulop and Husain on the basis that it was not the omission in those cases that was considered an accident but rather the flight crew's unreasonable departure from standard procedures. Id., Ex. F at 14. The court contrasted Fulop and Husain with the failure to warn of DVT and held that unlike these other cases, a failure to warn of the risk of DVT is a non-event and thus not an accident. Id. Additionally, the court held that the seating configuration on an airplane is not an unusual or unexpected event on a flight and thus is likewise not an accident. The court found that Blansett was wrongly decided because the decision rested on policy grounds rather than an examination of the Warsaw Convention and an application of the definition of "accident" provided in Saks. Upon review, a concurring Lord Justice Judge noted that the trial court was correct in its analysis of the term "accident" and that
[s]ome of the decisions to which we have been referred suggest that courts have taken as their starting point other decisions on the application of the Article rather than, as I believe is inevitably correct, an initial consideration of the language of the Article itself. The result is a gradual journey so far away from the source that the origins can no longer be clearly seen.
Docket No. 96, Ex. A at 22.
In addition to reviewing case law on the issue, the lower court also provided an extensive analysis of the structure and purpose of the Warsaw Convention to illuminate the definition of "accident." The court started with the premise that the definition provided in Saks was valid and widely accepted and that it was binding as precedent since it was decided by the highest court of a signatory of the treaty. Docket No. 69, Ex. F at 11. The court went on to find, as did the Saks court, that the drafters meant for the term "accident" to mean more than just an "occurrence." Id. at 16; Saks, 470 U.S. at 397-99.
The use of the term "occurrence" in Article 18, which provides carrier liability for delay and damage to baggage and cargo, makes it apparent that the drafters of the treaty intended "accident" in Article 17 to "mean something different than the word `occurrence,' for they otherwise logically would have used the same word in each article." Saks, 470 U.S. at 398.
The lower court further held that since the purpose of the treaty was uniformity, an interpretation based on common law would be inappropriate because it would undermine that uniformity. Docket No. 69, Ex. F at 19-20. The court noted that any finding that a failure to warn of DVT risks is not an accident effectively precludes recovery and
offends against the common law principle of finding a remedy where there is wrong. But this is not the application of the common law. It is the application of an international convention in which a balance was struck between the interests of the carriers and the passenger with the conditions for liability being established and defences proved on the basis of uniformity and certainty to the intended benefit of passengers and carriers worldwide.Id., Ex. F at 20. The court rejected the claimants' contentions that a fault-based liability or that a modern risk apportionment theory should be applied to expand the definition of "accident" to any culpable act by an air carrier. Id., Ex. F at 19-20. Instead, the court found that the drafters apportioned the risk by providing liability where an accident is established, while at the same time limiting the carriers' liability. Fault does not come into the analysis until after an accident is established and a carrier then tries to assert a defense pursuant to Article 20 that they took all necessary measures to avoid the damage.
The Saks court noted that, by agreement, most airlines servicing the United States have waived the "all necessary measures" defense in Article 20 up to $135,000 in damages, but that this does not change the analysis for interpreting the term "accident." Saks, 470 U.S. at 406-07.
The British courts' treatment of the failure to warn issue is based on a detailed and thorough review of case law, underlying legal theories, and the text and structure of the treaty itself. As a result, this Court finds the courts' reasoning persuasive. However, the one area that is not addressed by the British courts that was raised in Blansett is whether an industry standard to warn of the risks of DVT existed at the time of the DVT incidents. Blansett held that a memo circulated by an industry association in 2001 — and prior to the incident in that case — that told its members that they should warn of the risks of DVT was sufficient to establish a question of fact on whether an industry standard existed. Blansett, 246 F. Supp.2d at 601-02, 602 n. 7. The court was also persuaded by an alleged expert in aviation health, Farrol Kahn, who affied that "five of the ten most-traveled international airlines, as well as other less-traveled airlines, provided information to passengers regarding the risk of DVT" at the time of the 2001 incident. Id. at 602. The British court appears to have glossed over this issue and assumed that not warning of the risk of DVT was the general practice at the time of the DVT incidents in that case.
As to the requirement that the event should be "unexpected or unusual", Mr Lawson submits that the touchstone of what is expected or usual is the practice generally adopted by airlines. An act which complies with such practice cannot properly be described as an "accident" within Article 17. Idiosyncratic, though regular, behaviour by an individual airline is capable, by reason of being unexpected or unusual, of qualifying as an accident. The preliminary issue is proceeding, however, on the premise that the manner of operation of the specimen aircraft reflects the general practice of all the airlines who are party to this litigation. No aspect of that practice can have the quality of an "accident.
Docket No. 96, Ex. A at 7. However, even accepting that a violation of an industry standard could constitute an accident, as Blansett held, there is no evidence in the record in the present case to show that in 2000, when Louie suffered his stroke, warning passengers was the industry standard.
The evidence in Blansett post-dates Louie's stroke. The memo and assertions in Blansett established a standard effective in 2001, the year following Louie's stroke. The same expert that provided evidence of an industry standard in Blansett, Farrol Kahn, has provided an affidavit in this case. Docket No. 87, first Ex. A. In his affidavit in this case, however, noticeably absent is any reference to an industry standard in place in 2000. Rather, the affidavit contains several pages of information regarding the risks of DVT and asserts that the airlines were aware of the risk of DVT in 2000 and should have warned passengers at that time. Kahn further alleges that the failure to warn establishes negligence on the part of the airlines. Id. This argument takes the analysis in Blansett — already stretched thin for lack of precedential authority or legal analysis apart from common law negligence theory — and stretches it to the breaking point. It could be argued that to distinguish Blansett on a standard established in 2001 and not in 2000 provides a harsh result for Louie. However, as noted before, the analysis in Blansett takes a broader approach to the term accident than precedent or treaty construction can bear. Thus, the fact that the one hinge that the Blansett argument hung on is not present in this case is fatal to Louie's case.
Defendants challenge whether Kahn qualifies as an expert pursuant to Daubert and Federal Rule of Civil Procedure 702. Docket No. 90 at 13-14. However, even if Kahn is accepted as an expert and his affidavit is credited, Defendants still win on summary judgment and so the issue is not dispositive to this case.
Plaintiff has filed an additional affidavit by Kahn in conjunction with a motion to supplement its opposition to the motions for summary judgment. Docket No. 97. This affidavit likewise does not provide any evidence that an industry standard of warning passengers existed in 2000. The affidavit is an attempt to establish Kahn as an expert and provide further information to bolster the argument that warning passengers should have been the standard. Because the supplemental material at Docket No. 97 does not provide any relevant new information, the motion to supplement will be denied.
Finally, the British appellate court's closing comments are equally applicable here:
I feel sympathy for the claimants in this group litigation and feel that they deserve a full explanation as to why their appeal has not succeeded. I would add that, if their claim goes no further, this may prove a blessing in disguise. It seems to me that if they had got over the hurdle of establishing an arguable case under Article 17, they would have faced litigation involving difficult issues of causation which would have been very costly to resolve and the outcome of which would have been questionable.
Docket No. 96, Ex. A at 19. In sum, after reviewing the case law and the text and structure of Article 17, it is not possible to find that either a failure to warn Louie of the risk of DVT or a comfortable seat with a leg rest was an accident as defined by the Warsaw Convention. The failure to warn was not an unusual or unexpected event because there is no evidence in the record to show that to provide such a warning was standard industry practice in 2000. Neither is a comfortable seat with a leg rest an unexpected or unusual event in business class. Consequently, the airlines' motions for summary judgment will be granted.
D. Article 25 of the Warsaw Convention
In striking a balance between limiting an international air carrier's liability with a passenger's interest in compensation for bodily injuries, the Warsaw Convention limits liability to $75,000 per passenger for accidents causing bodily injury or damage to personal belongings that occur on international flights. See Carey v. United Airlines, 255 F.3d 1044, 1047 (9th Cir. 2001). This cap protecting air carriers is, however, lifted by Article 25 if it is found that the air carrier caused the accident through willful misconduct. See id. at 1049-50. Article 25 provides the following:
The carrier shall not be entitled to avail himself of the provisions of this convention which exclude or limit his liability, if the damage is caused by his willful misconduct or by such default on his part as, in accordance with the law of the court to which the case is submitted, is considered to be equivalent to willful misconduct.
Art. 25, 49 U.S.C. § 40105 note. Louie asserts that Article 25 provides him a separate cause of action from Article 17 because the airlines' failure to warn constitutes willful misconduct pursuant to Article 25. Docket No. 16 at 19. This argument was rejected in the lower court in Carey v. United Airlines, Inc., 77 F. Supp.2d 1165, 1174-75 (D. Or. 1999), and the lower court's decision was affirmed by the Ninth Circuit. Carey, 255 F.3d at 1054. Article 25 was found only to lift limits on liability, not to act as a separate cause of action that avoids Article 17's requirement of an accident and bodily injury as prerequisites to imposing liability on international air carriers. Id. Louie does not, therefore, have a separate cause of action pursuant to Article 25 of the Convention.
IT IS THEREFORE ORDERED:
The motions for summary judgment by Alaska Airlines and British Airways at Docket Nos. 66 and 69 are GRANTED. The claims against these two Defendants are dismissed. The motion to compel Louie's medical records by British Airways at Docket No. 85 is DENIED AS MOOT. The motion to supplement the record by Louie at Docket No. 97 is DENIED. The motion to supplement the record by Louie at Docket No. 100 is GRANTED. As noted earlier, Dr. McGuire has filed a notice of withdrawal of his motion for summary judgment at Docket No. 101, and therefore the Court deems the motion WITHDRAWN.
With the elimination of the only federal cause of action, it would appear that this Court should decline supplemental jurisdiction and permit Plaintiffs case against Dr. McGuire to proceed in state court. Any party objecting to this result should file their objections on or before December 2, 2003.