- The Next Asbestos Litigation? The Next Lead Paint Litigation? Probably Not, But International Air Travel Just Got More Costly For Airlines
- December 21, 2009
- Law Firm: Marshall, Dennehey, Warner, Coleman & Goggin - Philadelphia Office
A federal district court in San Francisco has given a green light to lawsuits against airlines where passengers on international flights claim they suffered serious physical injury (including death) as a result of the airline's wrongful denial of water, seating change requests, mobility, and failure to respond appropriately to medical emergencies. The common aspects of the cases are the allegations that the passenger developed a deep vein thrombosis ("DVT"), either during the flight or within days after the flight, and that the airline's employees' conduct during the flight contributed to the formation of the DVT.
DVT is a medical condition that occurs when a blood clot (medically, a thrombus) forms within one of the large, deep veins of the body, usually in the leg. If not treated, the blood clot can break off and travel to the brain, the heart or the lungs. When this happens, it quickly can cause a heart attack, a stroke, or an interruption of vital lung function. DVTs can result from long periods of immobility, lack of hydration, and lack of sufficient oxygen. Couple those conditions with low atmospheric pressure (such as that which occurs in high altitude flight), and it is no surprise that studies have shown a link between air travel and DVT.
To the disappointment of plaintiffs' lawyers, DVT lawsuits involving domestic air travel have been hit or miss. Federal preemption was the death knell for lawsuits where the theory of liability was failure to warn passengers of the risks of DVT. However, in October of 2007, the Ninth Circuit Court of Appeals allowed claims to go forward where the theory of liability concerns seat configuration. But plaintiffs' lawyers unanimously cheered a recent ruling in cases involving international travel, where it is the Warsaw Convention ("Convention") that defines and controls the relationship between passengers and air carriers.
For plaintiff passengers to recover from airline defendants, the circumstances of their claims must fall within the Convention's parameters. The controlling section of the Convention, Article 17 provides:
The carrier shall be liable for damages sustained in the event of death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place aboard the aircraft or in the course of any of the operations of embarking or disembarking.
49 Stat. 3018 (emphasis added). What circumstances constitute an "accident" is the question.
The Honorable Vaughn R. Walker, a district judge in the Northern District of California, presides over dozens of DVT cases assigned in a multi-district litigation. In a recent opinion involving a number of cases that fall under the Convention, he granted many summary judgment motions filed by defendant airlines, but he denied those motions in three cases. In each case where he denied summary judgment, Judge Walker decided that a reasonable jury could conclude that the alleged injury (which resulted from the development of a DVT) was caused by an "accident," as that term has come to be defined and applied in the context of Article 17 of the Convention.
The Supreme Court of the United States has stated that an Article 17 "accident" is "an unexpected or unusual event or happening that is external to the passenger." See Air France v. Saks, 470 U.S. 392, 405 (1985). The Court noted that because any injury "is the product of a chain of causes," a plaintiff need demonstrate only that "some link in the chain was an unusual or unexpected event external to the passenger." Id. at 406.
The development of a DVT in and of itself is not considered an "accident" within the meaning of Article 17 because a DVT is an "internal reaction to the normal operation of the aircraft." See Rodriquez v. Ansett Australia, Ltd., 383 F.3d 914, 917 (9th Cir. 2004). Therefore, to determine which DVT incidents resulted from an "accident," as opposed to only the normal operation of the aircraft, an assessment must be made of all of the circumstances surrounding a passenger's development of the DVT. See Saks at 405.
In all three cases, Judge Walker found that a reasonable jury could conclude that the airline's conduct, though different in each case, was "unexpected or unusual" and that the conduct was a causal link in either the development itself of the DVT (and subsequent harm suffered) or in the harm suffered (death) as a result of a DVT that occurred in the normal operation of the aircraft but which was not addressed appropriately. See In re: Deep Vein Thrombosis Litigation, MDL Docket No. 04-1606 (N.D.CA, Judge Vaughn R. Walker, filed Oct. 10, 2007).
In one case where summary judgment was denied, Bianchetti v. Delta Airlines, Inc., the court found that a reasonable jury could decide that the Delta Airline's flight crew's response to a passenger's medical emergency was "unusual or unexpected" because the response was not in accordance with Delta's Flight Operations Manual. During the last half -hour of a flight from London to Atlanta, Mary Bianchetti collapsed in the aisle on her way to the bathroom. When reached, she was having great difficulty breathing, and her husband told the flight crew and the two passengers who came to Ms. Bianchetti's aid that she suffered from asthma. One of the two passengers stated that he thought she was having an asthma attack. The other Samaritan, who identified himself as a physician's assistant, felt under Ms. Bianchetti's calves and said that he thought she had a blood clot. On board, Ms. Bianchetti was treated with an inhaler, to no effect. EMS paramedics who met the plane were not advised of the possibility that Ms Bianchetti had a blood clot but were advised only of the asthma (mis)diagnosis. After approximately twenty minutes of administering unsuccessful asthma treatment, Ms. Bianchetti died as a result of a blood clot that had traveled from her leg to her lungs.
Delta argued that the claim should be disallowed because it was based upon a negligence theory and, therefore, outside of Article 17 of the Convention. But, the court followed earlier federal court cases involving other types of medical emergencies where the courts found that "[w]hether in the final analysis the flight crew's acts under [the] circumstances were culpably negligent is beside the point. What does matter . . . is that the Flight and the air carrier's operation were not routine or normal in the sense that they allegedly deviated from compliance with expected procedures." Fulop v. Malev Hungarian Airlines, 175 F. Supp.2d 651, 671 (S.D.NY 2001).
In another case, Dabulis v. Singapore Airlines, the passenger plaintiff was traveling from Singapore to New York with a stop in Germany. On one leg of the flight, there was a vertical metal bar directly in front of Ms. Dabulis' assigned seat, which severely restricted her movement and position options within the seat. Although she complained to the flight attendants that confinement in this seat was causing her leg to swell, impairing her ability to walk and causing serious pain, they refused her request to be re-seated in a less constricting seat, despite the (admitted) fact that such other seats were available. The court found that the refusal to re-seat Ms. Dabulis could be considered an "unusual or unexpected event" in that such a refusal may be considered a blatant disregard of industry standards and airline policies, constituting an Article 17 accident, and that this refusal was a causal link in the development of a DVT which required extensive medical treatment, including surgery.
In the third case, Reitschel v. US Airways, Inc., Mr. Reitschel was traveling from San Francisco to Frankfurt. On the second leg of the trip, a flight out of Philadelphia to Frankfurt, after the passengers had boarded the plane, take-off was delayed for two hours due to bad weather. During this two-hour period, the passengers were told that they had to stay in their seats and were not offered any drinks. Two or three days after the flight, Mr. Reitschel noticed swelling in his left calf, was diagnosed with a DVT, was hospitalized for almost two weeks and received treatment for several months. The court rejected US Airways' argument that the plaintiff's claim was based on nothing more than prolonged sitting, which, even where it causes injury, by itself is not actionable under the Convention. Rather, the court opined that a reasonable jury could conclude that it was the airline's conduct of keeping passengers in their seats for a prolonged period for no safety or other articulated reason (and the failure to offer drinks during that time) that was the unusual or unexpected event (the "accident") that played a part in the development of the DVT. The court reasoned that "[w]holesale preclusion of recovery for injuries arising from prolonged immobility at the direction of the flight crew" for reasons other than safety "or, as may be the case here, for no apparent reason at all . . . would give airlines cart blanche to force passengers to remain seated without reason." See Judge Walker's Oct. 12, 2007, decision at p. 30.