The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
SANDRA ALARCON,
Plaintiff,
v.
AEROVIAS DE MEXICO, S.A. DE
C.V., a foreign corporation Case No. 18 C 8032
d/b/a AEROMEXICO, and
AEROLTORAL S.A. DE C.V., a Judge Harry D. Leinenweber
foreign corporation, d/b/a
AEROMEXICO CONNECT,
Defendants.
MEMORANDUM OPINION AND ORDER
I. BACKGROUND
This negligence claim is brought under the Montreal
Convention by Plaintiff Sandra Alarcon (“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 her 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. 31.)
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 her final destination
being Chicago, Illinois. (Id. ¶ 12.) Flight 2431 crashed shortly
after take-off in dangerous and inclement weather conditions.
(Id. ¶ 8.) Defendants owed passengers onboard Flight 2431 a duty
of care as a common carrier and breached this duty in its attempt
to take off 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, she
sustained a lower back fracture, as well as psychological
injuries like anxiety and post-traumatic stress disorder
(“PTSD”). (Pl. Statement of Material Facts (“SMF”) (Dkt. No. 34)
¶¶ 5-6.)
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.
III. DISCUSSION
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
her burden to prove the third element, causation, at trial for
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 her 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 finds that Plaintiff maintains a triable issue of
fact and denies Summary Judgment.
It is true that proof of causation of complex medical
diagnoses 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 specialized 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
disclosed no such experts.
But 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 at trial as a lay witness about
her own “perceptions of her physical and mental health during
the relevant time period.” 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 during her deposition that she suffered from back pain
after the plane crash. It would not be beyond the jury’s
experience or observations to infer that a plane crash caused
these injuries.
In addition to the Plaintiff’s testimony, the jury may also
infer causation from fact witness lay testimony. 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).
Here, Plaintiff offered Licensed Clinical Professional
Counsel Almudena Ruiz (“Ruiz”) for deposition. Ruiz treated
Plaintiff and during her deposition testified about Plaintiff’s
depression, anxiety, and PTSD. (Pl. SMF ¶ 6.) Because Ruiz was
not disclosed as an expert, she may not testify that the subject
plane crash was one cause of Plaintiff’s diagnoses. See
Levingston, 2022 WL 952279, at *4. But Ruiz may still testify as
a fact witness even though she is not qualified as an expert
witness, and the jury may infer causation from this testimony.
Defendants contend the Plaintiff will be unable to prove
causation for the mental injuries because recovery under the
Montreal Convention requires that the Plaintiff to prove the
mental anguish was a result of the physical injuries, as opposed
to merely a result of the accident itself. The Seventh Circuit
has not had occasion to decide this issue of the “causation rule”
under the Montreal Convention. This Court elects to follow the
Sixth Circuit and lower courts, including one 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 *9-10 (N.D. Ill. Jan. 12, 2022)
(Pallmeyer, J.) The cases on which Defendants rely mirror those
on which the defendant relied in Oshana and which Judge Pallmeyer
distinguished either because they did not involve allegations of
any physical injury, or because the claim was brought under the
Warsaw Convention, not the Montreal Convention. Id. Judge
Pallmeyer observed the relevant language differed between the
two conventions which provided sound reason to avoid an analogous
reading. Id. at * 7. Accordingly, the jury here need not infer
that Plaintiff’s emotional distress was caused by her 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 her 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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