Opinion
Case No. 6:11-cv-69-Orl-19GJK
01-09-2013
MOHAMMED SALEEM SIDDIQ, et al., Plaintiffs, v. SAUDI ARABIAN AIRLINES CORPORATION, Defendant.
ORDER
This case comes before the Court on the following:
(1) The Motion for Partial Summary Judgment filed by Plaintiffs Mohammed Saleem Siddiq and Zarina Saleem Siddiq (Doc. No. 94, filed June 28, 2012);
(2) The Memorandum of Law in Opposition to Plaintiffs' Motion for Partial Summary Judgment filed by Defendant Saudi Arabian Airlines Corporation (Doc. No. 96, filed July 30, 2012); and
(3) The Reply in Support of Plaintiffs' Motion for Partial Summary Judgment filed by Plaintiffs Mohammed Saleem Siddiq and Zarina Saleem Siddiq (Doc. No. 105, filed Nov.16, 2012).
INTRODUCTION AND PROCEDURAL BACKGROUND
This action concerns claims under the Convention for the Unification of Certain Rules for International Carriage by Air, entered at Montreal on May 28, 1999, ICAO Doc. No. 9740 (entered into force on November 4, 2003), reprinted in S. Treaty Doc. No. 106-45, 1999 WL 3329734 (2000), 3 Av. Law Rep. (CCH) ¶27,400 (the "Montreal Convention"). The United States of America and Saudi Arabia are signatories to the Montreal Convention, and on April 11, 2010, Defendant Saudi Arabian Airlines Corporation ("Defendant"), operated an international flight between Jeddah, Saudi Arabia and Dulles International Airport in Virginia ("Flight 35"). Mohammed Saleem Siddiq ("Mr. Siddiq"), who is a United States citizen, suffered cardiac arrest while he was a passenger on Flight 35. (Doc. No. 1.) Although Mr. Siddiq survived the heart attack, he allegedly suffered "serious irreversible" bodily injuries and other damages due to unnecessary and unexpected delay in obtaining necessary medical treatment. (Id.)
Defendant changed its name to "Saudia" on May 29, 2012. (Doc. No. 96 at 1, n.1.)
On January 18, 2011, Mr. Siddiq and his spouse Zarina Saleem Siddiq ("Mrs. Siddiq") (collectively, the "Plaintiffs"), brought this action to recover damages resulting from Defendant's actions and inactions during Flight 35. (Doc. No. 1.) In their Complaint, Plaintiffs set forth the following five claims: (1) liability resulting from an "accident" on an international flight under the Montreal Convention ("Count I"); (2) negligence ("Count II"); (3) negligent infliction of emotional distress ("Count III"); (4) "breach of contract for failure to exercise the highest degree of care" in preventing injury of any kind to Mr. Siddiq ("Count IV"); and (5) loss of consortium on behalf of Mrs. Siddiq ("Count V"). (Doc. No. 1 at ¶¶20-30.)
In support of their claims, Plaintiffs allege that the pilots and crew on Flight 35 (the "Flight Crew") diverted from normal industry practice and procedure by continuing to fly for at least ten hours after learning that Mr. Siddiq was suffering cardiac arrest and needed "definitive medical treatment." (Doc. No. 1.) Plaintiffs further allege that "required equipment" that "would have alleviated symptoms caused by" Mr. Siddiq's in-flight heart attack were not provided in the medical treatment kit aboard Flight 35 (the "Kit"). (Doc. No. 1 at ¶¶20-21.) Under these circumstances, and in light of the expected flight time of approximately thirteen hours, Plaintiffs claim that continuation of Flight 35 was an "unexpected" response to Mr. Siddiq's medical emergency and constitutes an "accident" under the Montreal Convention. (Id.)
Defendant filed its Answer to the Complaint and its affirmative defenses on June 1, 2011 (the "Answer"). (Doc. No. 19.) In its Answer, Defendant denied that an "accident" occurred during Flight 35, denied any wrongdoing, and asserted nine affirmative defenses, including that the Court lacks subject matter jurisdiction over the claims asserted against Defendant (the "Jurisdiction Defense") (id. at 6-7), and that Plaintiffs' state law claims are preempted pursuant to Article 29 of the Montreal Convention (the "Preemption Defense"). (Id. at 7).
Notwithstanding Defendant's assertion of the Jurisdiction Defense, the parties have jointly and correctly represented to this Court that subject matter jurisdiction exists because: (1) under 28 U.S.C. §1331 this is an action arising under the Montreal Convention, a treaty of the United States; and (2) under 28 U.S.C. §1330(a), the Defendant "is a 'foreign state' as defined in 28 U.S.C. § 1603." (Doc. No. 108 at 1-2.)
Pertinent to the Preemption Defense, the parties have jointly represented to this Court that the Montreal Convention "exclusively governs the rights and liabilities of the parties and preempts state law claims." (Doc. No. 108 at 1-2.) The parties' agreement concerning preemption accords with controlling law (infra THE LEGAL STANDARDS, Part II, The Montreal Convention, at n.5).
Following the filing of their initial pleadings, the parties engaged in highly contentious discovery. Plaintiffs filed multiple motions to compel discovery and for sanctions against Defendant, many of which were granted by the Court. (Doc. No. 35, filed Nov. 1, 2011 (Motion to Compel Depositions of Defendant's Employees); Doc. No. 37, filed Nov. 7, 2011 (Renewed Motion to Compel Discovery from Defendant); Doc. No. 42, filed Dec. 7, 2011 (Order granting in part and denying in part Renewed Motion to Compel); Doc. No. 45, filed Dec. 28, 2011 (Notice of Defendant's Non-Compliance with Discovery Order); Doc. No. 47, filed Jan. 4, 2012 (Second Motion to Compel Discovery from Defendant); Doc. No. 48, filed Jan. 5, 2012 (Plaintiffs' Motion for Sanctions); Doc. No. 51, filed Jan. 10, 2012 (Plaintiffs' Amended Motion for Sanctions); Doc. No. 56, filed Jan. 18, 2012 (Order granting in part and denying in part Plaintiffs' Amended Motion for Sanctions); Doc. No. 61, filed Jan. 25, 2012 (Plaintiffs' Third Motion to Compel Discovery); Doc. No. 64, filed Feb. 1, 2012 (Order granting in part and denying in part Plaintiffs' Amended Motion for Sanctions); Doc. No. 75, filed Feb. 15, 2012 (Endorsed Order granting Agreed Motion for Attorneys' Fees related to Plaintiffs' successful Motion for Sanctions); Doc. No. 77, filed Mar. 2, 2012 (Plaintiffs' Motion to Compel Deposition); Doc. No. 79, filed Mar. 8, 2012 (Plaintiffs' Motion to Strike); Doc. No. 91, filed Apr. 18, 2012 (Order denying Motion to Compel as moot, but ordering Defendant to produce witness for deposition).) Further, the parties' initial effort to mediate their dispute ended without success. (Doc. No. 62, filed Jan. 26, 2012.)
On June 28, 2012, Plaintiffs filed a Motion for Partial Summary Judgment concerning the discrete issue of Defendant's strict liability for Plaintiffs' recovery of "Special Drawing Rights" under the Montreal Convention (the "Motion"). (Doc. No. 94.) Specifically, Plaintiffs request judgment as a matter of law that the Flight Crew's response to Mr. Siddiq's heart attack constitutes an "accident" under Article 17 of the Montreal Convention. (Id. at 19-20.) If the Court rules in Plaintiffs' favor on this issue, then Defendant "is strictly liable for the damages resulting from this accident, up to the limit of $100,000.00 Special Drawing Rights set forth in Article 17 of the Montreal Convention." (Id. at 21.)
In support of their Motion, Plaintiffs filed copies of the transcripts of the depositions of several fact witnesses, including: (1) Mr. Siddiq (Doc. No. 94-1); (2) Mr. Siddiq's son and companion on Flight 35, Mustafa Saleem Siddiq ("Saleem Siddiq") (Doc. No. 94-2); (3) Kareem Abu-Elmagd, M.D. ("Dr. Kareem"), who was a passenger on Flight 35 and who responded to the Flight Crew's request for medical assistance for Mr. Siddiq (Doc. No. 94-3); and (4) Captain Marouf Mushtag Jan ("Captain Jan"), who testified as the Rule 30(b)(6) deponent for Defendant (Doc. No. 94-4). In addition, Plaintiffs submitted evidentiary materials related to their proffered expert opinion witnesses. With respect to medical issues, Plaintiffs submitted the Rule 26(a)(2) report of Nicholas Vitiello, M.D. ("Dr. Vitiello") (Doc. No. 94-7 (the "Vitiello Report")), and portions of the transcript of Dr. Vitiello's deposition (Doc. No. 94-6). With respect to flight practices and procedures, Plaintiffs submitted: (1) the sworn Affidavit of Captain Patrick Hassett ("Captain Hassett") (Doc. No. 94-5); (2) the Rule 26(a)(2) report of Captain Keith Mackey ("Captain Mackey") (Doc. No. 94-9 (the "Mackey Report")); and (3) a copy of the transcript of the deposition of Captain Mackey (Doc. No. 94-8).
Defendant filed a Memorandum of Law in Opposition to the Motion (the "Response"), countering that the record is replete with questions of fact concerning exactly what happened on Flight 35, and whether the Flight Crew's response to Mr. Siddiq's heart attack constitutes an "accident" under the Montreal Convention. (Doc. No. 96 at 1.) In support of its Response, Defendant submitted the following evidentiary material (not already submitted by Plaintiffs): (1) a copy of the transcript of the deposition of Captain Hassan Abdullah Salem, who was one of the pilots on Flight 35 ("Captain Salem") (Doc. No. 96-2); (2) a copy of the transcript of the deposition of Mohhammed Bingursain, who was one of the flight attendants on Flight 35 ("Attendant Bingursain") (Doc. No. 96-8); (3) a copy of Defendant's "Flight Operations" Policy Manual "Vol I (Part 121/91)" (the "Operations Policy") (Doc. No. 96-4); and (4) a copy of a document titled "Medical and Customs Report" with handwritten notations (the "Customs Report") (Doc. No. 96-6). Like Plaintiffs, Defendant submitted evidentiary materials from expert witnesses concerning flight practices and procedures, including copies of the transcripts of the depositions of: (1) Captain Hassett (Doc. No. 96-7); and (2) Captain Robert Shore ("Captain Shore"), who prepared a report on behalf of Defendant in accordance with Rule 26 (the "Shore Report") (Doc. No. 96-5).
After obtaining an extension of time due to the death of Plaintiffs' primary attorney (Doc. Nos. 97-99), on November 16, 2012, Plaintiffs filed their Reply in Support of the Motion (the "Reply"). (Doc. No. 105.) With their Reply, Plaintiffs submitted an English translation of an Arabic document dated June 26, 2010, purportedly authored by Abdulaziz Khan (the "Khan Memo"), who was the Senior Supervisor of the flight attendant crew aboard Flight 35 ("Supervisor Khan") (Doc. No. 105-1.) Upon careful consideration of the voluminous record, the applicable law, and the parties' respective arguments, the Court will deny the Motion.
Plaintiffs' initial counsel has been terminated. (Doc. Nos. 110, 112-13, 116.)
THE LEGAL STANDARDS
I. Rule 56 of the Federal Rules of Civil Procedure
A party is entitled to summary judgment "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party moving for summary judgment has the burden of proving that: (1) there is no genuine issue as to any material fact, and (2) it is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). An issue of fact is "material" if, under the applicable substantive law, it might affect the outcome of the case. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259 (11th Cir. 2004). An issue of fact is "genuine" if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party. Id. at 1260. In determining whether the moving party has met its burden, the court may not weigh conflicting evidence or weigh the credibility of the parties. Further the court must consider all inferences drawn from the underlying facts in the light most favorable to the non-moving party and against the moving party. Hairston v. Gainesville Sun Pub. Co., 9 F.3d 913, 919 (11th Cir. 1993); Anderson, 477 U.S. at 255. If a reasonable factfinder could draw more than one inference concerning a material fact, the court must deny summary judgment. Hickson Corp., 357 F.3d at 1259. In short, a court must decide "whether the evidence . . . is so one-sided" that the moving party "must prevail as a matter of law." Id.; Anderson, 477 U.S. at 251-52.
II. The Montreal Convention
As a treaty of the United States, the Montreal Convention is the supreme law of the land. U.S. Const. Art. VI, cl.2; El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 174 (1999). Further, the Montreal Convention provides the exclusive remedy to persons who suffer damages related to a covered international flight, thereby preempting any state law claims. El Al Israel Airlines, Ltd., 525 U.S. at 174-76; Marotte v. Am. Airlines, Inc., 296 F.3d 1255, 1259-60 (11th Cir. 2002).
Article 24 of the Montreal Convention provides in relevant part: "In the carriage of passengers and baggage, any action for damages, however founded, can only be brought subject to the conditions and limits set out in this Convention." The Supreme Court of the United States has held that Article 24 provides a "rule of exclusivity" prohibiting suits under local laws even when a passenger cannot establish a covered air carrier's liability under the Montreal Convention. El Al Israel Airlines, Ltd., 525 U.S. at 174-76. Numerous lower courts have since followed the rule of exclusivity concerning the Montreal Convention. E.g., Marotte, 296 F.3d at 1259-60 (affirming dismissal of state law claims based on preemption under the Montreal Convention); In re Air Crash Near Rio Grande Puerto Rico on Dec. 3, 2008, No. 11-MD-2246-KAM, 2012 WL 760885, at *4 (S.D. Fla., Mar. 7, 2012) (holding that the Montreal Convention "provides an exclusive cause of action for injuries sustained on an international flight"); Mateo v. JetBlue Airways Corp., 847 F.Supp.2d 383, 386-87 (E.D.N.Y. 2012) (permitting removal of action alleging only state law claims for damages related to covered international flight and dismissing state law claims as completely preempted by the Montreal Convention); Mikerina v. Delta Airlines, Inc., 834 F.Supp.2d 54, 57-58 (D. Mass. 2011) (dismissing state law claims related to international flight as preempted and affording plaintiffs an opportunity to amend their complaint to assert claims under the Montreal Convention); Aina v. United Parcel Serv., Inc., No. H-10-3655, 2011 WL 4458761, at *3 (S.D. Tex., Sept. 22, 2011) (granting summary judgment in favor of carrier on preemption defense).
When the Montreal Convention became effective on November 4, 2003, it replaced the Warsaw Convention (the Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed at Warsaw on October 12, 1929, as amended by the Protocol done at the Hague on September 8, 1955, reprinted in S. Exec. Rep. No. 105-20 (1998)). Eli Lilly & Co. v. Air. Exp. Int'l USA, Inc., 615 F.3d 1305, 1308 (11th Cir. 2010). Consistent with explicit legislative intent, "it is appropriate to rely on cases interpreting the Warsaw Convention where the equivalent provisions of the Montreal Convention" (such as Article 17) are at issue. Ugaz v. Am. Airlines, Inc., 576 F.Supp.2d 1354, 1360 (S.D. Fla. 2008); e.g. White v. Emirates Airlines, Inc., No. 11-20843, 2012 WL 4478446, *3 (5th Cir., Oct. 1, 2012) (quoting legislative history for the Montreal Convention concerning application of "precedent developed under the Warsaw Convention"); Mendez v. TACA Int'l Airlines, S.A., No. 1:11-cv-23061-KMM, 2012 WL 1409539, at *2 n.3 (S.D. Fla., Apr. 23, 2012).
Pursuant to Article 17, the Montreal Convention imposes strict liability on a covered carrier "for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking." Montreal Convention, Article 17 (emphasis added). To prevail on a strict liability claim of bodily injury under the Montreal Convention, the plaintiff has the burden of establishing: (1) the occurrence of an "accident" within the meaning of the Montreal Convention; (2) the "accident" occurred on the aircraft or during the embarking or disembarking processes; and (3) the plaintiff suffered bodily injury caused by such "accident."Marotte, 296 F.3d at 1259; e.g. Air France v. Saks, 470 U.S. 392, 405 (1985); Sakaria v. Trans World Airlines, 8 F.3d 164 (4th Cir. 1993); Nobre v. Am. Airlines, No. 09-61170-CIV, 2009 WL 5125976, *2 (S.D. Fla. Dec. 21, 2009); Ugaz, 576 F.Supp.2d at 1361, 1364-65.
Even if the Court were to find in favor of Plaintiffs on their Motion, a trial still would be necessary to determine whether Defendant is liable for damages in excess of the Special Drawing Rights. (Doc. No. 1; Doc. No. 108 ¶6.A.1.) Once strict liability of the air carrier is established, liability for damages in excess of Special Drawing Rights is presumed absent proof by the carrier that it was not negligent or that the plaintiff's damages were "solely due to the negligence or other wrongful act or omission of a third party." Montreal Convention, Art. 21.
An "accident" under the Montreal Convention is "an unexpected or unusual event or happening that is external to the passenger." Air France, 470 U.S. at 405; Olympic Airways v. Husain, 540 U.S. 644, 646 (2004) (finding that airline's failure to move an sthmatic passenger away from smoke during flight resulting in passenger's death was an accident under the Montreal Convention). The "accident" need not be the sole cause of the damage to the passenger; rather, the unusual and unexpected event need only be "a link in a chain of causation." Olympic Airways, 540 U.S. at 646, 651. Further, the definition of "accident" is "a flexible one, which is to be considered in light of the surrounding circumstances." Nobre, 2009 WL 5125967 at *3, n.3.
While a passenger's heart attack is not an "accident" because it is not "external" to the passenger, Rajcoor v. Air India, Ltd., 89 F.Supp.2d 324, 328 (E.D.N.Y. 2000), a defendant air carrier's response to a passenger's heart attack may constitute an "accident" if it is sufficiently unexpected or unusual. This point was made abundantly clear by following analysis of the Supreme Court in Olympic Airways:
Suppose that a passenger on a flight inexplicably collapses and stops breathing and that a medical doctor informs the flight crew that the passenger's life could be saved only if the plane lands within one hour. Suppose further that it is industry standards and airline policy to divert a flight to the nearest airport when a passenger otherwise faces imminent death. If the plane is within 30 minutes of a suitable airport but the crew chooses to continue its cross-county flight, "the notion that this is not an unusual event is staggering."Id. at 656 (quoting McCaskey v. Continental Airlines, Inc., 159 F.Supp.2d 562, 574 (S.D. Tex. 2001).)
Consistent with Olympic Airways, courts have recognized that a Montreal Convention plaintiff may establish an "accident" based on proof of a flight crew's unexpected or unusual response to a passenger's medical emergency (particularly a diversion from expected policies and procedures). Yahya v. Yemenia Yemen Airways, No. 08-14789, 2009 WL 3424192, at *5-*6 (E.D. Mich., Oct. 20, 2009) (denying defendant's motion to dismiss where flight crew ignored plaintiff's demand for an immediate landing so that plaintiff could receive medical attention); Fulop v. Malev Hungarian Airlines, 175 F.Supp.2d 651, 664 (S.D.N.Y. 2001) ("Fulop I") (denying defendant's motion to dismiss); Watts v. Am. Airlines, Inc., No. 1:07-cv-434, 2007 WL 3019344, at *2 (S.D. Ind. Oct. 10, 2007) (denying defendant's motion to dismiss where passenger allegedly suffered heart attack, died in airplane lavatory, and was not discovered by cleaning personnel until after landing). Analysis of a flight crew's actions is fact-intensive, and it has generally not been the subject of resolution on a motion for summary judgment.Krys v. Lufthansa German Airlines, 119 F.3d 1515, 1521 (11th Cir. 1997) (affirming judgment for plaintiff after bench trial, but noting that whether continuation of a flight after passenger's heart attack was an "accident" under the Warsaw Convention "was a close question"); Cardoza v. Spirit Airlines, Inc., No. 10-CIV-61668, 2011 WL 2447523, at *3-*6 (S.D. Fla., Jun. 15, 2011) (denying the parties' cross-motions for summary judgment concerning whether flight crews' response to passenger's apparent medical emergency was an "accident" under the Montreal Convention); Fulop v. Malev Hungarian Airlines, 244 F.Supp.2d 217 (S.D.N.Y. 2003) ("Fulop II").
But see, Sook Jung Lee v. Korean Air Lines Co., Ltd., No. 10-01709-JVS, 2012 WL 1076269, at *5-*7 (C.D. Cal. 2012) (granting airline's motion for summary judgment where evidence established that flight crew followed all of its procedures following discovery of passenger's stroke, including diversion and landing of flight at suggestion of passenger with medical expertise); Aziz v. Air India Ltd., 658 F.Supp.2d 1144, 1153-54 (C.D. Cal. 2009) (granting defendant's motion for summary judgment that a failure to have a defibrillator on board aircraft was not an "accident" under the Montreal Convention as a matter of law).
The defendant air carrier whose motion to dismiss was denied in Fulop I ultimately prevailed after a bench trial in Fulop II. Based upon all the evidence presented at trial, the Fulop II Court held that the pilot did not deviate from policy and procedure when he chose not to divert an international flight after the plaintiff's heart attack. Fulop II, 244 F.Supp.2d at 220.
ANALYSIS
Plaintiffs move for summary judgment on the grounds that "there is no genuine issue of material fact as to whether the flight is covered by the Montreal Convention, or whether the accident qualifies under the provisions of the Montreal Convention." (Doc. No. 94 at 3 (emphasis added).) Specifically, Plaintiffs contend that the referenced "accident" was "Defendant's failure to land to get Mr. Siddiq help" since such failure "represents [Defendant's] unexpected and unusual break from its own policies, from its passenger safety considerations and airline industry standards." (Id. at 11.) According to Plaintiffs, it is "mind-boggling" that the Flight Crew continued to fly for ten hours instead of making a timely diversion and landing when: (1) Mr. Siddiq was experiencing a heart attack; (2) "the limited medical equipment" on the plane was "deficient, out of date or not working;" (3) Dr. Kareem had no training with respect to dealing with a patient suffering a heart attack and he could not surgically "stabilize" Mr. Siddiq during the flight; (4) Mr. Siddiq's condition did not improve or worsened during Flight 35; and (5) the aircraft was within thirty to sixty minutes of many suitable airports at which it could land, but the crew elected to continue flying for more than ten hours. (Id. at 20.) Under these circumstances, Plaintiffs contend that the Court can determine that the events on board Flight 35 resulting in injury to Mr. Siddiq constituted an "accident" as a matter of law. (Id.; Doc. No. 105 at 9-10 (attempting to distinguish Krys because the flight crew in that case purportedly "knew" that the passenger was suffering a heart attack).)
Aside from conflicting evidence of the parties' respective expert witnesses, the only evidence of Defendant's "own policies" is Exhibit D to the Response (Doc. No. 96-4.) The text of this document is exceedingly brief concerning the requisite steps in response to a passenger's "Illness, Injury, or Death in Flight." (Id.) In any event, the Defendant's Policy merely appears to instruct that the captain be notified and then leaves to the captain's discretion whether to "divert to the nearest suitable to airport." (Doc. No. 96-4 at 5.) It would seem difficult to establish diversion from such written policy. Nonetheless, if the facts found after a trial are as Plaintiffs contend, they may indeed establish an "unexpected" and "unusual" diversion from passenger safety considerations and industry standards.
In its Response, Defendant counters that the Court should deny the Motion because "there exists a plethora of genuinely disputed issues of material fact surrounding the events that occurred on board" Flight 35 and whether such events constitute an "accident" under the Montreal Convention. (Doc. No. 96 at 1). In particular, Defendant disputes that: (1) the medical equipment on board was insufficient to stabilize Mr. Siddiq; (2) Mr. Siddiq's condition did not improve during Flight 35; and (3) it was "unexpected" or "unusual" for the Flight Crew to continue Flight 35 when the medical professional treating Mr. Siddiq did not state that a premature landing was necessary, but indicated that Mr. Siddiq's condition was improved. (Doc. No. 96; Doc. No. 108 ¶6.) Upon review of all the evidence presented to the Court in the record, the Court agrees with Defendant that the Motion should be denied, because Plaintiffs have not established that the record "is so one-sided" that the Plaintiffs "must prevail as a matter of law." Hickson Corp., 357 F.3d at 1259; e.g. Krys, 119 F.3d at 1521;Cardoza, 2011 WL 2447523, at *3-*6.
Defendant does not appear to dispute that: (1) Flight 35 is covered by the Montreal Convention; (2) Mr. Siddiq suffered a heart attack on Flight 35 (although it disputes that fact was known to the Flight Crew during Flight 35); (3) suitable airports existed at which Flight 35 could have landed before it commenced crossing the Atlantic Ocean; and (4) Flight 35 never diverted, but landed at its intended destination in Dulles. (Doc. No. 96; Doc. No. 108 ¶¶ 3, 9(1)-(8).)
The facts in Krys appear to be remarkably similar to those presented in the record here. The passenger in Krys fell ill and contacted a flight attendant "in the early hours" of a transatlantic flight. Krys, 119 F.3d at 1517. A "flight attendant requested that any doctors on board the plane identify themselves," a passenger responded, and the passenger began to attend to the ill passenger, including by providing nitroglycerin to relieve a heart attack. Id. Despite the ill passenger, the Krys flight crew continued to its destination across the Atlantic, "ostensibly relying" on the advice of the medical passenger. Finding a "close question" presented, the Eleventh Circuit Court of Appeals affirmed the trial court's determination that no accident resulted under the Warsaw Convention.
In their Reply, Plaintiffs argue that the only pertinent issues are what occurred during the first six hours of Flight 35, when Mr. Siddiq first presented with chest pains, avoidance of permanent heart damage was possible, and multiple airports for a diverted landing were available in the Middle East and Europe. (Doc. No. 105 at 3.) If Plaintiffs are correct, the unavailability of summary judgment in their favor is even more obvious. Notably, the record is conflicting at best and ambiguous at least as to what the Flight Crew knew, and the record is devoid of any evidence from Pilot Hisahm Zarie, who was in command of the flight when Mr. Siddiq first complained of chest pain and was treated by Dr. Kareem with multiple nitroglycerin tablets. Plaintiffs point to the Customs Report as evidence that the Flight Crew knew that Mr. Siddiq was suffering a heart attack within those first critical hours; however, Dr. Kareem testified that he completed the Customs Report at the end of the Flight. (Doc. No. 94-3.) Further, Dr. Kareem's deposition testimony concerning what he knew and when and how he related his knowledge to members of the Flight Crew is too confused and contradictory to permit resolution of the matters at issue as a matter of law. Once all available evidence is presented at trial, it may very well be apparent that Pilot Zarie's failure to divert was both unexpected and unusual, but no such determination can be made at this time on the record presented as a matter of law. Accordingly, the Motion must be denied.
The Court agrees with Plaintiff that the hearsay statements of Captain Salem may not be considered in resolving the Motion. (Doc. No. 105 at 3, n.2 (citing Reese v. Herbert, 527 F.3d 1253, 1271 N.29 (11th Cir. 2008).) --------
CONCLUSION
Based on the foregoing, it is ORDERED and ADJUDGED that the Motion for Partial Summary Judgment filed by Plaintiffs Mohammed Saleem Siddiq and Zarina Saleem Siddiq (Doc. No. 94, filed June 28, 2012) is DENIED.
DONE and ORDERED in Chambers in Orlando, Florida on January 9, 2013.
/s/_________
PATRICIA C. FAWSETT, JUDGE
UNITED STATES DISTRICT COURT Copies furnished to: Counsel of Record