# Martinez v. Aerovias de Mexico, S.A. de C.V.

> District Court, N.D. Illinois · September 6, 2023

URL: https://www.frixlaw.com/law-library/cases/10149373

## Case

- **Court:** District Court, N.D. Illinois
- **Decided:** September 6, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

NESTOR MARTINEZ,

Plaintiff,

v.

AEROVIAS DE MEXICO, S.A. DE
C.V., a foreign corporation Case No. 19 C 00118
d/b/a AEROMEXICO, and AEROLTORAL
S.A. DE C.V., a foreign Judge Harry D. Leinenweber
corporation, d/b/a AEROMEXICO

CONNECT,

Defendants.

MEMORANDUM OPINION AND ORDER

I. BACKGROUND

This negligence claim is brought under the Montreal
Convention by Plaintiff Nestor Martinez (“Plaintiff”). The
Montreal Convention is an international treaty that imposes
liability on an air carrier for a passenger’s injury or death
caused by an accident during an international flight. Montreal
Convention, Art. 17(1). Plaintiff filed his Complaint in the
Circuit Court of Cook County Law Division alleging two counts of
Negligence against Defendants Aeromexico and its subsidiary
Aeromexico Connect (collectively, “Defendants”). The matter was
removed to the Northern District of Illinois. The Court maintains
diversity jurisdiction under 28 U.S.C. § 1332. Before the Court
is Defendants’ Motion for Summary Judgment. (Dkt. No. 25.)
The Complaint alleges the following facts: on July 31, 2018,

Defendant Aeromexico was scheduled to operate Flight 2431 from
Durango, Mexico to Mexico City, Mexico using an aircraft owned and
operated by Aeromexico and/or Aeromexico Connect. (Dkt. No. 1-1
(“Compl.”)¶ 7.) Plaintiff Martinez was a passenger on Flight 2431
and resident of Illinois with his final destination being Chicago,
Illinois. (Id. ¶ 12.) Flight 2431 crashed shortly after take-off
in dangerous and inclement weather. (Id. ¶ 8.) Defendants owed
passengers onboard Flight 2431 a duty of care as a common carrier
and breached this duty in its attempt to takeoff in Durango, Mexico
despite the unsafe weather conditions and poor visibility. (Id.
¶¶ 18-19.) As a result of the negligence and resulting crash,
Plaintiff suffered personal and pecuniary injuries while onboard
the plane. (Id. ¶ 20.) Plaintiff alleges that due to the July 31,

2018 crash, he sustained injury to his back, right arm, elbow,
sleep disturbances, as well as emotional distress. (Pl. Statement
of Material Facts, (“SMF”), Dkt. No. 28 ¶¶ 7, 9, 17, 18, 23, 29.)
This matter represents one of fourteen (14) separate matters
brought against Defendants by individual plaintiff passengers for
negligence arising from the same July 31, 2018, Aeromexico
Flight 2431 crash. The matters have been consolidated before this
Court and in eleven of these matters, Defendants moved for Summary
Judgment. Defendants have since settled with four (4) of these
plaintiffs. For the reasons stated herein, the Court denies

Defendants’ Motion.
II. LEGAL STANDARD
Summary Judgment is appropriate if there is “no genuine
dispute of material fact and the movant is entitled to judgment as
a matter of law.” FED. R. CIV. P. 56(a). A dispute is genuine if a
reasonable jury could return a verdict for the nonmoving party.
Carroll v. Lynch, 698 F.3d 561, 564 (7th Cir. 2012). The relevant
substantive law governs whether a fact is material. Id. When
reviewing the record on a summary judgment motion, the Court must
view the facts and draw reasonable inferences in the light most
favorable to the nonmoving party. Scott v. Harris, 550 U.S. 372,
378 (2007). If, however, the factual record cannot support a

rational trier of fact to find for the nonmoving party, summary
judgment is appropriate. Id. at 380.
A. Physical Injuries
It is not in dispute that this matter is governed by
Article 17 of the Montreal Convention. The convention provides
that “[t]he air carrier is liable 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.” Montreal Convention, Art. 17(1). Accordingly, the
elements of a Plaintiff’s claim for bodily injury under the
Montreal Convention are “(1) an accident, (2) that took place on
board the aircraft, (3) which caused (4) an injury.” Narkiewicz-
Laine v. Aer Lingus Ltd., 2015 WL 5009766, at *3 (N.D. Ill.

Aug. 21, 2015).
Defendants dispute that Plaintiff will be able to satisfy his
burden to prove the third element, causation, at trial for either
physical injuries or emotional distress. Defendants’ logic is as
follows: expert testimony is required to demonstrate causation
between the accident and the injuries, and Plaintiff failed to
disclose any experts who can testify about causation as is required
pursuant to Federal Rule of Civil Procedure Rule 26. The one expert
that Plaintiff did disclose – an accident reconstructionist – is
not Plaintiff’s treating physician and does not opine on injury

causation. Without expert testimony, Plaintiff would therefore be
unable to prove a required element of his claim and thus Summary
Judgment should be granted in Defendants’ favor. Defendants argue
at a minimum the Court should award partial summary judgment.
The Court will first address the physical injuries and then
the emotional distress claim.
It is well-established that causation testimony of complex
medical diagnoses is the kind of testimony that requires expert,
as opposed to lay witness, testimony. See F. R. EVID. 702 (lay
witness may not offer testimony “based on scientific, technical,
or other knowledge.”). It is also without question that Plaintiff

is required formally to disclose experts it intends to present at
trial regarding causation of complex medical injuries pursuant to
Federal Rule of Civil Procedure 26(a)(2). FED. R. CIV. P. 26.
Plaintiff did not do so here. Instead, Plaintiff listed certain
treating physicians in his initial Rule 26(a)(1) disclosures and
offered other treating physicians for deposition – Dr. Janet
Morioka, Dr. Yogen Patel, and Almudena Ruiz - Plaintiff’s treating
physical therapist, rehabilitation physician, and therapist,
respectively. During deposition, Dr. Morioka testified about her
impressions of Plaintiffs’ diagnoses of abnormal posture, muscle
weakness and strain that her colleague had diagnosed. Dr. Patel
testified about her treatment of Plaintiff for his right elbow

pain, and her diagnoses of tendinosis, brachioradial muscle
tenderness, and myofascial pain. (Pl. SMF ¶¶ 17, 18.) Ruiz
testified about her diagnoses of Plaintiff’s depression and
anxiety. (Pl. SMF ¶ 27.)
The Court finds that Plaintiff maintains a triable issue of
fact and denies Summary Judgment.
First, not all medical injuries require expert testimony on
causation. If the connection between an accident and an injury “is
a kind that would be obvious to laymen, such as a broken leg from
being struck by an automobile,” expert testimony is not necessary.
Schmaltz v. Norfolk & Western Ry., 896 F.Supp. 180, 182 (N.D. Ill.

1995) (internal quotation marks and citation omitted). Causation
can be proven without expert testimony, “if all the primary facts
can be accurately and intelligibly described to the jury, and if
they, as men of common understanding, are as capable of
comprehending the primary facts and of drawing correct conclusions
from them.” Cyrus v. Town of Mukwonago, 624 F.3d 856, 864 (7th
Cir. 2010) (quoting Salem v. U.S. Lines Co., 370 U.S. 31, 35
(1962)). For those injuries that do not involve a “complicated
question of medical causation,” Plaintiff may testify as a lay
witness about his own perception, including physical and emotional
effects, of the accident. Hendrickson v. Cooper, 589 F.3d 887, 892
(7th Cir. 2009).
Narkiewicz-Laine v. Aer Lingus Ltd. is instructive. 2015 WL
5009766 (N.D. Ill. Aug. 21, 2015). The court in Narkiewicz denied

in part defendant’s motion for summary judgment in a Montreal
Convention claim. Id. at *5. Despite plaintiff’s failure to present
experts that could testify that an accident on board a flight was
the cause of plaintiff’s resulting seizure episodes, plaintiff was
nevertheless able to testify as to his resulting vertigo,
dizziness, memory loss, and headaches for which expert testimony
was not required. Id. at *4–5. Here, Plaintiff testified that after
the plane crash he sustained arm and back pain. It would not be
beyond the jury’s experience or observations to infer that a plane

crash caused these injuries.
Second, a jury can still infer causation from a treating
physician’s foundation testimony about that injury, even if the
witness is not an expert able to testify about causation.
Plaintiff’s treating physicians may testify as fact witnesses
about their personal observations, the diagnoses they made,
Plaintiff’s history, and the treatments they provided. See
Levingston v. Myles, 2022 WL 952279, at *4 (N.D. Ill. Mar. 30,
2022) (Leinenweber, J.) (“Because Levingston did not formally
disclose any treating physicians as experts, they are treated as
fact witnesses. In other words, they may testify to what they
observed and the diagnoses they made, but they may not testify
about what could have caused the injuries.”); see also Caldwell v.
City of Chicago, 2010 WL 380696, at *4 (N.D. Ill. Jan. 28, 2010).

Without being properly qualified as experts, Plaintiffs’ treating
physicians are unable to testify as to the cause of the injuries
for which they treated Plaintiff. But this does not preclude a
jury from finding causation from the testimony they are allowed to
give. See Saccameno v. Ocwen Loan Servicing, LLC, 2018 WL 10609875,
at *1 (N.D. Ill. Mar. 20, 2018).
Plaintiff proposes the Court deem the treating physicians as
experts for purposes of Rule 26(a)(2)(C). Rule 26(a)(2)(C)
provides that for witnesses who are not retained or specially

employed to provide testimony, a written report is not required.
Instead, the party need only disclose “(i) the subject matter on
which the witness is expected to present evidence under Federal
Rule of Evidence 702, 703, or 705; and (ii) a summary of the facts
and opinions to which the witness is expected to testify.” FED. R.
CIV. P. 26(a)(2)(C). Despite not disclosing any such summary for
the treating physicians, Plaintiff proposes the Court treat the
written summary requirement as satisfied because Defendants had
notice of these “expert” witnesses through Plaintiff’s written
answers to discovery requests and witness depositions. The Court
sees nothing to support such a bending of the rule. Rule
26(a)(2)(C)’s written summary requirement serves an important
notice function to the opposing party. Musser v. Gentiva Health
Servs., 356 F.3d 751, 757-58 (7th Cir. 2004). It is not the job of

the opposing party to make a record of the factual basis of the
expert’s testimony by way of a deposition. See Gregory v. Oliver,
2002 WL 31972165 at *1–2 (N.D. Ill. Dec. 27, 2002) (Shadur, J.)
Without the proper disclosures, Plaintiff’s treating physicians
must testify as fact, and not expert witnesses.
Plaintiff’s reliance on Barnes v. Black, 2008 WL 11366274
(C.D. Ill. 2008) is misplaced. The question in Barnes was whether
this reference to a treating physician in plaintiff’s deposition

could constitute the kind of notice contemplated by FRCP 26(a)(1)
governing fact witnesses. 2008 WL 11366274, at *1-2. The court
found the reference put the opposing party on notice such that the
physician was allowed to testify as a fact witness at trial. Id.
Barnes did not deal with disclosures required by FRCP 26(a)(2)
which governs qualified expert testimony, and which is at issue
here.
B. Emotional Distress
Defendants move for Summary Judgment on Plaintiff’s emotional
distress claims under the same logic: Plaintiff’s claim requires
him to prove that the plane crash caused his emotional distress,
which requires expert testimony. Because Plaintiff has not
disclosed his therapist, Almuneda Ruiz, as an expert, he will be

unable to prove causation and the Court should grant Defendants
Summary Judgment at least with respect to his emotional distress
claims. Defendants also contend that the Plaintiff will be unable
to satisfy the “causation rule” for emotional distress under the
Montreal Convention, which requires Plaintiff to prove that his
mental anguish resulted not just from the crash, but from the
physical injuries themselves.
The Court denies Defendants’ Motion for Summary Judgment on
the emotional distress claims for the same reasons it denies it on
the physical injury claims. Defendants again make the mistaken

leap that without an expert to testify about causation, Plaintiff
is unable to prove causation all together. This is not so.
Plaintiff can testify about his own “perceptions of his physical
and mental health during the relevant time period,” and Flynn and
King may testify about his observations, diagnosis, and treatment
of Plaintiff. Saccameno, 2018 WL 10609875, at *2. Ruiz can testify
about her diagnoses and treatment of Plaintiff. It is for the jury,
not this Court, to decide whether to infer causation.
The Seventh Circuit has not had occasion to decide the issue
of the “causation rule” under the Montreal Convention. This Court
elects to follow the Sixth Circuit and lower courts, including
those in this circuit, that have held that a plaintiff’s emotional

distress claim brought under the Montreal Convention need not
demonstrate the emotional distress was caused by physical
injuries. See Doe v. Etihad Airways, 870 F.3d 406 (6th Cir. 2017);
Oshana v. Aer Lingus Ltd., 2022 WL 138140, at *9 (N.D. Ill.
Jan. 12, 2022) (Pallmeyer, J.) The cases on which Defendants rely
mirror those on which defendant relied in Oshana and which Judge
Pallmeyer distinguished these they did not involve allegations of
any physical injury, or because the claim was brought under the
Warsaw Convention, not the Montreal Convention. Id. Accordingly,
the jury need not infer that Plaintiff’s emotional distress was
caused by his physical injuries - it is enough to infer they were
caused by the crash itself.
III. CONCLUSION
In sum, Plaintiff’s treating physicians may testify as fact
witnesses regarding their diagnoses, the patient’s history,
observations, and treatment of Plaintiff. Plaintiff may testify
about his own experiences - mental and physical - relating to the
plane crash. Because there is a genuine issue of material fact
regarding causation, Defendants’ Motion for Summary Judgment or
Partial Summary Judgment is denied.

IT IS SO ORDERED.

)

«Harry D. Leinenweber, Judge
United States District Court
Dated: 9/6/2023

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10149373. Public record. Not legal advice.