Rodriguez v. Aerovias de Mexico, S.A. de C.V.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

YAMILET RODRIGUEZ,

Plaintiff,

v.

AEROVIAS DE MEXICO, S.A. DE

C.V., a foreign corporation Case No. 18 C 7322

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 Yamilet Rodriguez (“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. 41.)

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 Rodriguez 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 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, she sustained injury to her

back and sustained psychological injuries from these physical

injuries including anxiety (Pl. Statement of Material Facts,

(“SMF”), Dkt. No. 46 ¶ 5.)

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

material fact and denies Summary Judgment.

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.

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 as a lay

witness about her 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 during

her deposition that she suffered from back pain after the plane

crash. To prove these injuries were the result of the plane crash

would not require expert testimony – a jury could infer causation

from this evidence.

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 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. (Ruiz Dep. (Dkt. No. 44-3) at 138-

39.) 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. The jury may infer causation from this

testimony.

Defendants contend the Plaintiff will be unable to prove

causation for her mental injuries because recovery under the

Montreal Convention requires the mental injuries to be 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.) Judge Pallmeyer observed

the court in Doe called attention to the difference in language

between the two conventions which provided sound reason to avoid

an analogous reading. Id. at *7-9. 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. at *9. 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 licensed clinical professional worker,

Ruiz, may testify as a fact witness regarding her diagnoses, the

patient’s history, observations, and treatment of Plaintiff, and

mental distress. 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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