“[A] treating physician is only exempt from Rule DA 26(a) (2) (B)’s written report requirement to the extent that 5 his opinions were formed during the course of treatment.”
How later courts described this case
- “[A] treating physician is only exempt from Rule DA 26(a) (2) (B)’s written report requirement to the extent that 5 his opinions were formed during the course of treatment.”
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10
11 NICOLINE AMBE,individually, ) Case No. 2:17-CV-08719 DDP-E
and THE ESTATE OF THE )
12 DECEDENT NDIFORCHU ALFRED )
TAMUNANG, by administrator ) ORDER RE: MOTIONS FOR SUMMARY
13 NICOLINE AMBE; SUZY ANJIM ) JUDGMENT
NDIFORCHU; BLAFANWI )
14 NDIFORCHU; BOBBI AMANG ) [Dkt. 94, 95]
NDIFORCHU; CHO MOFOR )
15 NDIFORCHU; SARAH NGWE GEH )
)
16 Plaintiffs,
17 v.
18 AIR FRANCE, S.A., a French
public limited company; and
19 DOES 1-50.
20 Defendant.
21
22 Presently before the court are cross motions for summary
23 judgment filed by Plaintiffs (Dkt. 94) and Defendant Air France,
24 S.A. (“Air France”) (Dkt. 95). Having considered the submissions
25 of the parties, the court GRANTS Air France’s motion, DENIES
26 Plaintiffs’ motion, and adopts the following Order.
27 I. Background
28 On December 7, 2015, Ndiforchu Alfred Tamunang (“Decedent”)
1 Amended Complaint ¶ 22.) At the start of the flight’s descent into
2 Paris, flight attendants discovered Decedent stretched out across
3 three seats. (Declaration of Sarah Passeri, Ex. A at 4.)
4 Decedent’s eyes were rolled back, he was not breathing, and he had
5 no pulse. (Id.) Five flight attendants, including a nurse,
6 attempted to resuscitate Decedent through the use of an automatic
7 external defibrillator, cardiac massage, a balloon ventilator,
8 oxygen, and the injection of “pysiological serum,” to no avail.1
9 (Id.) Cockpit personnel immediately informed the control tower to
10 request priority landing and the immediate assistance of French
11 emergency medical technicians. (Passeri Decl., Ex. C at 11.)
12 French medical personnel on the ground took over resuscitative
13 efforts from flight attendants, but declared Decedent dead on the
14 plane a few minutes later. (Passeri Decl. Ex. A at 4, C at 11.)
15 The U.S. State Department’s Report of Death of U.S. Citizen Abroad
16 indicates that Decedent died of “Natural causes,” as certified by a
17 French doctor from the Charles de Gaulle Airport Medical Unit and
18 registered with French authorities the day after Decedent’s death.
19 (Passeri Decl., Ex. M.)
20 Plaintiffs’ Third Amended Complaint, however, alleges that an
21 autopsy, conducted approximately 6 weeks later in Cameroon,
22 determined that Decedent’s cause of death was “accidental
23 aspyhxiation.” (TAC ¶ 29.) Plaintiffs’ TAC alleges causes of
24 action for strict liability and negligence against Air France,
25 pursuant to the Convention for the Unification of Certain Rules
26 Relating to International Carriage by Air, May 28, 1999, S. Treaty
27
1 There appears to be no dispute that this term refers to
28
saline.
1]} Doc. No. 106-45 (“Montreal Convention”). Plaintiffs and Air France
now each move for summary judgment.
3] II. Legal Standard
4 Summary judgment is appropriate where the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show “that there is no
7 genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A party
seeking summary judgment bears the initial burden of informing the
court of the basis for its motion and of identifying those portions
of the pleadings and discovery responses that demonstrate the
absence of a genuine issue of material fact. See Celotex Corp. v.
13} Catrett, 477 U.S. 317, 323 (1986). All reasonable inferences from
14] the evidence must be drawn in favor of the nonmoving party. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 242 (1986). If the
moving party does not bear the burden of proof at trial, it is
entitled to summary judgment if it can demonstrate that “there is
an absence of evidence to support the nonmoving party’s case.”
Celotex, 477 U.S. at 323.
20 Once the moving party meets its burden, the burden shifts to
the nonmoving party opposing the motion, who must “set forth
22\|| specific facts showing that there is a genuine issue for trial.”
23|) Anderson, 477 U.S. at 256. Summary judgment is warranted if a
party “fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.” Celotex,
477 U.S. at 322. A genuine issue exists if “the evidence is such
that a reasonable jury could return a verdict for the nonmoving
1] party,” and material facts are those “that might affect the outcome
of the suit under the governing law.” Anderson, 477 U.S. at 248.
There is no genuine issue of fact “[w]here the record taken as a
whole could not lead a rational trier of fact to find for the
nonmoving party.” Matsushita Elec. Indus. Co. v. Zenith Radio
6 Corp., 475 U.S. 574, 587 (1986).
7 It is not the court’s task “to scour the record in search of a
genuine issue of triable fact.” Keenan v. Allan, 91 F.3d 1275,
1278 (9th Cir. 1996). Counsel have an obligation to lay out their
10] support clearly. Carmen v. San Francisco Sch. Dist., 237 F.3d
1026, 1031 (9th Cir. 2001). The court “need not examine the entire
file for evidence establishing a genuine issue of fact, where the
13}/ evidence is not set forth in the opposition papers with adequate
references so that it could conveniently be found.” Id.
III. Discussion
16 Under Article 17 of the Montreal Convention, an air “carrier
17}/is liable for damage sustained in case of death or bodily injury of
18]/a passenger upon condition only that the accident which caused the
19] death or injury took place on board the aircraft or in the course
of any of the operations of embarking or disembarking.” Montreal
Convention, art. 17. The dispositive question here is whether
22 || Decedent’s death resulted from an “accident.”
2s It is well established that, for purposes of the Montreal
24 Convention, an injury arises from an accident “only if a
20 passenger’s injury is caused by an unexpected or unusual event
26
27
28
or happening that is external to the passenger.”* Air France
Saks, 470 U.S. 392, 405 (1985); Phifer v. Icelandair, 652
3] F.3d 1222, 1224 (9th Cir. 2011). “But 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 ... .”
Saks, 470 U.S. at 406; Caman v. Cont’l Airlines, Inc., 455
8] F.3d 1087, 1089 (9th Cir. 2006). A Plaintiff bringing a
Montreal Convention claim bears the burden of showing that an
accident occurred. See Armstrong v. Hawaiian Airlines, Inc.,
11] 416 F. Supp. 3d 1030, 1043 (D. Haw. 2019).
12
A. Cause of Death
13
14 Here, French medical authorities determined that Decedent
15 died of “[nJatural causes.” Such an injury, if suffered in
16 the usual course of aircraft operations, would not, of course,
17 constitute an “accident.” Plaintiffs attempt to carry their
18 burden, or to at least create a genuine dispute of fact as to
19 the cause of Decedent’s death, by arguing that their own
50 motion for summary judgment “proved” that Decedent died not of
natural causes, but rather by “accidental asphyxia.”
29 (Plaintiffs’ Opposition to Air France MSJ at 5.) Needless to
23 * In Montreal Convention cases, courts regularly apply
DA principles applicable to the Montreal Convention’s predecessor,
Convention for the Unification of Certain Rules Relating to
25 International Transportation by Air (“Warsaw Convention”’)”, October
12, 1929, 49 Stat. 3000, 137 L.N.T.S. See Narayanan v. British
26 Airways, 747 F.3d at 1127 n.2.
27 > Although Plaintiffs’ Opposition (Dkt. 101) to Air France’s
Motion for Summary Judgment is captioned correctly, each page of
28 Plaintiffs’ Opposition is labeled “Memorandum of Points and
Authorities ISO Plaintiffs’ MSJ.”
say, Plaintiffs’ Motion for Summary Judgment is not evidence.
21 More importantly, however, Plaintiffs’ theory as to
“accidental asphyxia” is not supported by any admissible
evidence.
1. Dr. Wanji
6
7 Plaintiffs’ asphyxiation theory is based primarily upon
9 the declaration of non-retained expert Dr. Wanji Rene (“Dr.
9 Wanji”’), produced for the first time in connection with
10 Plaintiff’s motion. Dr. Wanji’s declaration is accompanied by
tl a two-page autopsy report ostensibly conducted in Cameroon six
12 weeks after Decedent’s death. Dr. Wanji’s opinion is
13 inadmissible for several reasons. First, Dr. Wanji never
1A produced a written report, as required under Federal Rule of
15 Procedure 26(a) (2) (B) of all experts “retained or specially
16 employed to provide expert testimony.” Plaintiff’s only
17 explanation is that Dr. Wanji is a non-retained expert.
18 Courts, however, do not necessarily exempt experts from Rule
19 26(a) (2) (B) simply on the basis of counsel’s designation.
50 see, e.g., Burreson v. BASF Corp., No. 2:13-CV-0066 TLN AC,
2014 WL 4195588, at *4 (B.D. Cal. Aug. 22, 2014); cf. Goodman
29 v. Staples The Off. Superstore, LLC, 644 F.3d 817, 826 (9th
53 Cir. 2011) (“[A] treating physician is only exempt from Rule
DA 26(a) (2) (B)’s written report requirement to the extent that
5 his opinions were formed during the course of treatment.”).
Indeed, Dr. Wanji’s declaration states that he reviewed
documents produced in the course of this litigation, which
59 were presumably provided to him by Plaintiffs’ counsel.
1 (Wanji Decl. ¶ 4.) The declaration is silent as to the nature
2 of Dr. Wanji’s relationship to or interactions with Plaintiffs
3 or their counsel. (Wanji Decl. ¶ 4.)
4
Second, even assuming that Rule 26(a)(2)(B) does not
5
apply to Dr. Wanji, Rule 26(a)(2)(C) does. Rule 26(a)(2)(C)
6
requires an expert disclosure to state (1) “the subject matter
7
on which the witness is expected to present evidence” and (2)
8
“a summary of the facts and opinions to which the witness is
9
expected to to testify.” Fed. R. Civ. P. 26(a)(2)(C).
10
Plaintiffs’ disclosure, which stated only that Dr. Wanji “may
11
provide expert testimony with regards to his autopsy report,
12
medical facts and opinions concerning examination, diagnosis,
13
results of the autopsy [sic] . . .” complied with only the
14
first of these prescriptions, and can hardly be said to
15
comprise a summary of Dr. Wanji’s opinion that Decedent died
16
of accidental asphyxiation resulting from the ingestion of a
17
cork. Plaintiffs may not, therefore, rely upon the Wanji
18
Declaration to support or oppose the instant motions for
19
summary judgment. See Fed. R. Civ. P. 37(c)(1).
20
Even putting aside Rule 26 disclosure issues, Dr. Wanji’s
21
declaration does not meet the standards of admissibility
22
imposed by Federal Rule of Evidence 702. Trial courts have a
23
gatekeeping function regarding expert testimony. Daubert v.
24
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 n.7
25
(1993). Where “scientific, technical, or other specialized
26
knowledge will assist the trier of fact” to understand
27
evidentiary or factual issues, an expert witness who is
28
qualified by “knowledge, skill, experience, training, or
education” may “testify thereto in the form of an opinion or
otherwise.” Fed. R. Evid. 702. The proponent of the expert
testimony has the burden of establishing that the relevant
5} admissibility requirements are met by a “preponderance of the
evidence.” Daubert, 509 U.S. at 592 n.10 (citing Bourjaily v.
7! United States, 483 U.S. 171, 175 (1987)). Courts employ a
flexible inquiry tied to the facts of the particular case to
make determinations regarding the reliability of expert
testimony. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137,
11/152 (1999). The focus should be “solely on principles and
methodology, not on the conclusions they generate.” Daubert,
134509 U.S. at 595; see also Fed. R. Evid. 702 Adv. Comm. Note to
2000 Amdt. An expert’s experience alone can provide a
sufficient foundation for expert testimony, so long as the
witness explains “how that experience leads to the conclusion
17] reached, why that experience is a sufficient basis for the
opinion, and how that experience is reliably applied to the
facts.” Fed. R. Evid. 702 Advisory Committee Note to 2000
20] Amdt.
Dr. Wanji’s declaration falls short of Rule 702 standards
22 in numerous respects. First, the only evidence of Dr. Wanji’s
qualifications is his own statement that he is “a medical
24 doctor and pathologist with over 20 years of experience.”
2° (Wanji Decl. @ 1.) There is no indication that Dr. Wanji has
26 any particular expertise in asphyxiation, or indeed that he
has ever conducted an autopsy other than that of Decedent.
28
1 Nor do Plaintiffs respond in any way to Air France’s
2 contention that Dr. Wanhji is, in fact, a neonatologist.
3 Second, although Dr. Wanji’s declaration states that “multiple
4 other instructions not followed are procedures which would
5 have greatly enhanced to . . . over 80% [Decedent’s] chance of
6 surviving . . .,” he provides no methodology to explain such a
7 conclusion. The court notes further that Dr. Wanji’s
8 declaration that Decedent was “in good health and great shape”
9 when he boarded the plane is inconsistent with Dr. Wanji’s own
10 autopsy report, which stated that Decent was “thin, frail,”
11 and had “poor dentition with evidence of remote missing
12 teeth,” with apparent history of a tracheal tube and a “G-
13 tube.” Given these questions about Dr. Wanji’s
14 qualifications, experience, and methodology, his declaration
15 and report are not sufficiently reliable, and are not
16 admissible under Rule 702.
17
2. Dr. Nsahlai
18
Plaintiffs also rely upon the declaration and report of
19
Christiane Nsahlai (“Dr. Nsahlai.”) Dr. Nsahlai submitted an
20
expert report opining that Decedent died of “accidental
21
asphyxia,” that his death “was an unusual or unexpected event
22
that was external to him,” and that Air France did not follow
23
its own medical protocols. Dr. Nsahlai’s opinions, however,
24
are also not admissible. As an initial matter, and
25
notwithstanding Plaintiffs’ counsel’s attempt to prevent Dr.
26
Nsahlai from answering questions concerning her relationship
27
to counsel, with whom she shares a last name, it is now clear
28
1 that Dr. Nsahlai is Plaintiffs’ counsel’s sister. “Federal
2 courts have the inherent power to disqualify expert witnesses
3 to protect the integrity of the adversary process, protect
4 privileges that otherwise may be breached, and promote public
5 confidence in the legal system.” Hewlett-Packard Co. v. EMC
6 Corp., 330 F. Supp. 2d 1087, 1092 (N.D. Cal. 2004). Dr.
7 Nsahlai’s obvious conflict of interest would alone be
8 sufficient to warrant her disqualification.
9
Furthermore, however, Dr. Nsahlai’s opinions are not
10
admissible under Rule 702. Although designated as an expert
11
on Montreal Convention accidents, airline emergency
12
procedures, and “medical facts” involving Decedent, Dr.
13
Nsahlai testified that she has no experience in the aviation
14
industry as anything other than a passenger, she has no
15
training or expertise in on-board medical procedures, and her
16
only knowledge of the Montreal Convention is “hearing about
17
it.” Nor is there any indication that any other experience
18
qualifies her to render expert opinions in this matter, or
19
that her opinions are grounded in any reliable methodology.
20
Rather, her opinion appears to have been based largely on the
21
inadmissible opinions of Dr. Wanji, and no other medical
22
records, Indeed, Dr. Nsahlai acknowledged that she did not
23
take the French certification of death by natural causes into
24
account. Furthermore, like Dr. Wanji, she does not appear to
25
have any expertise in asphyxiation or autopsies, but rather is
26
a doctor of obstetrics and gynecology in Cameroon. In light
27
of these facts, Plaintiffs have failed to demonstrate that her
28
opinions or testimony are admissible under Rule 702, and
2 Plaintiffs may not rely on them here.
5 B. Air France’s Actions
4
5 Apart from the “accidental asphyxiation” theory,
6 Plaintiffs posit that Air France’s various alleged failures
7 with respect to the medical care provided to Decedent onboard
9 the aircraft constitute an “accident.” Actions by crew
9 members can, in some cases, qualify as the type of “unexpected
10 or unusual event” necessary to the occurrence of an “accident”
ll under the Montreal Convention. In Prescod v. AMR, Inc., 383
12 F.3d 861, 868 (9th Cir. 2004), for example, a passenger
13 notified the air carrier that she was traveling with a bag
14 containing medication and a breathing-assistance device, which
15 needed to remain with her at all times. Prescod, 383 F.3d at
16 864. Although the airline had promised that the bag could
17 stay with the passenger, she was forced to relinquish the bag
18 before boarding the second leg of her flight. Id. The
19 carrier then lost the bag, and the passenger died of
50 respiratory distress some days later. Id. at 865. The Ninth
Circuit found that, although baggage delays are not unusual,
29 “removing the bag from Neischer's possession was ‘unusual or
53 unexpected.’ Airlines do not usually take steps that could
DA endanger a passenger’s life after having been warned of the
5 person’s special, reasonable needs and agreeing to accommodate
26 them.” Id. at 868.
27 Inaction, too, may constitute an unusual event sufficient
to qualify as an “accident.” In Olympic Airways v. Husain,
11
1 540 U.S. 644, 647 (2004), for example, an asthmatic passenger
2 informed an air carrier that he could not sit near smoking
3 passengers, and supported his claim with a letter from a
4 physician. Husain, 540 U.S. at 647. The airline nevertheless
5 seated the passenger near a smoking section and thrice refused
6 to re-seat him. Id. Heavy cigarette smoke caused the
7 passenger to have a severe asthma attack, and die. Id. at
8 648. The Supreme Court held that, although the smoke itself
9 was not unusual, and the passenger’s reaction was internal,
10 the crew’s failure to act qualified as an unusual event
11 external to the passenger, sufficient to qualify as an
12 “accident.” Id. at 654-55.
13
Here, Plaintiffs point to several supposed instances of
14
the crew’s unusual, wrongful responses upon discovering
15
Decedent unconscious, including “failure to follow in-flight
16
medical procedures,” failure to seek the assistance of a
17
ground-based doctor, improper administration of saline, and
18
failure to properly use the defibrillator. Plaintiffs point to
19
no admissible evidence, however, to support these theories.
20
As discussed above, the opinions of Drs. Wanhji and Nsahlai
21
are not admissible. The only other evidence cited by
22
Plaintiffs is the opinion of Helen Zienkievicz, a designated
23
expert in “the applicable standard of care, negligence, with
24
regards to Air Franc’s handling of the medical emergency of
25
[Decedent], accident under the Montreal Convention.”4
26
27
4 Plaintiffs’ do not dispute that they did not take the
28
deposition of any percipient witness.
1 (Passeri Decl., Ex C ¶ 1.) Zienkievicz’s expert report also
2 describes her as “an expert in the field of aviation industry
3 standards.” (Id., Ex. D.). Nevertheless, Zienkievicz
4 testified that she is only “somewhat familiar with [the
5 Montreal Convention],” and is “not a legal expert.” (Passeri
6 Decl., Ex. E at 37.) Furthermore, although Zienkievicz’s
7 report opines that Decedent died from “accidental asphyxia,”
8 and that various Air France crew members’ actions or inactions
9 contributed to Decedent’s death, she testified that she was
10 not rendering a “medical opinion,” but rather an opinion on
11 “cabin safety and CPR and Hemlich.” (Passeri Decl., Ex. E at
12 68.) Zienkievicz appears, thus, to have conceded that she is
13 not qualified to render any opinion as to whether an
14 “accident” occurred for purposes of the Montreal Convention,
15 or as to the cause of Decedent’s death and the factors that
16 contributed to it.
17
Zienkievicz’s principles and methodology, or lack
18
thereof, are also cause for concern. Daubert, 509 U.S. at
19
595. Zienkievicz’s conclusions are admittedly founded upon
20
the inadmissible Wanji opinions, discussed above. (Passeri
21
Decl., Ex. E at 68.) Although Zienkievicz also testified that
22
her opinions were partly based upon the flight attendants’
23
reports, those reports are in French. Zienkievicz testified,
24
however, that she does not read French, and used Google
25
Translate to interpret some of the French-language documents.5
26
(Id. at 21, 39.) Plaintiffs do not dispute Air France’s
27
2 8
1 representations that Plaintiffs, despite Air France’s request,
2 never produced any translated documents upon which Zienkievicz
3 relied, and Plaintiffs have not shown, or attempted to show,
4 that any Google Translate translations were accurate.
5
Nor was Zienkievicz aware of critical details of this
6
case, including documentation indicating that French
7
authorities determined that Decedent died of natural causes.
8
(Id. at 41-42.) Further, although Zienkievicz opined that a
9
flight attendant “practiced maleficence” by injecting Decedent
10
with saline, she provides no basis for her assumption that the
11
treating flight attendant, a nurse, was not authorized or
12
trained to administer saline. Zienkievicz also later
13
testified that she could not say whether administering saline
14
would cause any harm.6 (Id., Ex. D at 6;) Ex. E at 90.)
15
Under these facts, the preponderance of the evidence does not
16
support the conclusion that the requirements of Rule 702 have
17
been met. Zienkievicz’s opinions are not admissible.
18
IV. Conclusion
19
20 Plaintiffs bear the burden of proving the elements of their
21 case. They have cited no admissible evidence to establish that an
22 “accident,” as defined under the Montreal Convention, led to
23 Decedent’s death. Plaintiffs have therefore failed to show that
24
6 Somewhat ironically, Zienkievicz testified that an onboard
25
nurse may not have been qualified to administer saline because “if
somebody . . . works in a neonatal clinic or a neonatal ICU, that
26
doesn’t necessarily mean that they’re going to know what to do with
an adult in terms of medicines, medications, and treatment.”
27
(Passeri Decl., Ex. E at 79.) As discussed above, Dr. Wanji
appears to practice neonatal medicine and Dr. Nsahlai is a doctor
28
of obstetrics and gynecology.
there is a genuine issue for trial, let alone that summary judgment
in their favor is warranted. Accordingly, for the reasons stated
above, Defendant’s Motion for Summary Judgement is GRANTED.
Plaintiff’s motion is DENIED.
5
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7 IT IS SO ORDERED.
8
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11] Pated: = august 10, 2021
12 DEAN D. PREGERSON
13
United States District Judge
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