The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
RUDY DIAZ,
Plaintiff,
v.
AEROVIAS DE MEXICO, S.A. DE
C.V., a foreign corporation Case No. 18 C 8022
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 Rudy Diaz (“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. 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 Diaz 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 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 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.) These included
breathing difficulties, back and mobility problems, and mental
suffering.
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
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
his 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 two
experts that Plaintiff did disclose – an accident
reconstructionist and a therapist, Dr. Mary Curry – are not able
to prove causation. The accident reconstructionist did not testify
about Plaintiff’s injuries at all, and Dr. Curry does not satisfy
the required causation rule under the Montreal Convention. Nor
can Plaintiff’s treating physicians, Dr. Anthi Katsouli and Dr.
Cavazos, testify about causation as they were not disclosed as
experts. 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 finds that Plaintiff maintains a triable issue of
material fact and denies Summary Judgment. The Court will first
address the physical injuries and then the emotional distress
claim.
It is true that causation 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 specialized knowledge.”)
It is also without question that Plaintiff is required formally to
disclose experts Plaintiff 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, even though several of Plaintiff’s alleged
injuries are specialized enough diagnoses for which any testimony
about causation must be expert testimony. These include thoracic
sprain, bilateral knee contusions, antalgic tilt and cranial
contusions. (Pl. Statement of Material Facts (“SMF”) (Dkt. No. 34)
¶¶ 17, 18.) Though they were deposed by Defendants, Dr. Cavazos
or Dr. Katsouli were not disclosed as experts. Dr. Cavazos
testified that he treated Plaintiff for back and forearm pain on
August 7, 2018, and diagnosed him with cranial contusion, knee
contusion, and antalgic tilt. (Pl. SMF ¶¶ 17, 18.) Dr. Cavazos
testified these injuries were caused by the plane crash. (Id.
¶ 18.) Dr. Katsouli testified that he treated Plaintiff for
wheezing and shortness of breath on October 15, 2019 and, and
though did not determine the cause of the condition, testified
that smoke inhalation is an irritant that may cause asthma, which
may result in these symptoms. (Pl. SMF ¶ 40.) Plaintiff alleges he
inhaled large quantities of smoke as he escaped from the plane
after the crash. (Id. ¶ 12.)
The question is then whether Plaintiff maintains a triable
issue of fact despite his failure to present experts to testify
about causation of his respiratory and physical injuries. The
Courts finds Plaintiff does.
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). Plaintiff testified during his deposition that
after the plane crash, he suffered from back and arm pain as well
as chronic breathing difficulties. (Pl. SMF ¶¶ 9-16.) It would not
be beyond the jury’s experience or observations to infer that a
plane crash which included excessive smoke caused these injuries.
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 can testify about
the manifestations of his own injuries that he experienced after
the plane crash from which the jury may infer causation.
Second, in addition to the Plaintiff’s testimony, the jury
may also infer causation from a fact witness’s 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) (same). Here, Plaintiff’s
treating physicians – Dr. Katsouli and Dr. Cavazos – may testify
as fact witnesses about their personal observations, the diagnoses
they made, Plaintiff’s history, and the treatments they provided.
The jury is permitted to infer causation from this testimony. See
Levingston, 2022 WL 952279, at *4.
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
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 as well, arguing that Plaintiff’s expert therapist
Dr. Curry cannot prove causation. Dr. Curry stated in her expert
report and during her deposition that it was her opinion
Plaintiff’s PTSD was caused by the plane crash. (Pl. SMF ¶¶ 23,
24); (Curry Dep. (Dkt. No. 34-4) at 10:4-16.) Defendants argue
that the applicable causation rule under the Montreal Convention
requires Dr. Curry to prove that the physical injuries resulting
from the crash caused Plaintiff’s emotional injuries. It is not
enough, Defendants contend, to prove merely the emotional injuries
were the result of the crash.
The Court denies Defendants’ Motion for Summary Judgment on
the emotional distress claim.
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 *9-10 (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 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. 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, Dr. Katsouli and Dr.
Cavazos, and expert therapist, Dr. Curry, may testify as fact
witnesses regarding their diagnoses, the patient’s history,
observations, and treatment of Plaintiff. Plaintiff’s expert
therapist may also testify about what, in her opinion, caused
Plaintiff’s mental anguish.
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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