The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DORELIA RIVERA, individually
and on behalf of her child,
K.R., a minor,
Plaintiffs,
v.
Case No. 18 C 06852
AEROVIAS DE MEXICO, S.A. DE
C.V., a foreign corporation Judge Harry D. Leinenweber
d/b/a AEROMEXICO, and AEROLTORAL
S.A. DE C.V., a 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 Kayla 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 her Complaint in the Circuit Court of Cook County
Law Division alleging four 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. 32.)
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 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, neck, and shoulders, hearing loss, tinnitus, flareups of her
Neonatal Onsite Multisystem Inflammatory Disease (“NOMID”), as
well as emotional distress including PTSD and severe anxiety. (Pl.
Statement of Material Facts (“SMF”) (Dkt. No. 35) ¶¶ 8, 9, 13, 14,
16, 17.)
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 her
burden to prove the third element, causation, at trial for either
her 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. 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. FED. R. CIV. P. 26(a)(2). 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, there is record evidence, including from Plaintiff
herself, that Plaintiff suffered from neck, jaw, leg, hand,
shoulder, and back pain, as well as hearing loss after the plane
crash. (Pl. SMF ¶¶ 8, 9, 13, 14, 16.) It would not be beyond the
jury’s experience or observations to infer that a plane crash
caused these injuries. In fact, Defendant’s own expert, George S.
Miz, stated in his report that Plaintiff suffered a “thoracolumbar
back strain” as a result of the plane crash. (Def. SMF (Dkt.
No. 32-2) ¶ 10.)
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 treating physicians for deposition –
Dr. Andersen, Dr. Stoner, Dr. Rivivo, Carolen King and Shawn Flynn
– Plaintiff’s pediatrician, physical therapist, audiologist, and
mental health therapists, respectively. Plaintiff disclosed two
of these witnesses in her Rule 26(a)(1) disclosures as fact
witnesses – Dr. Andersen and Ms. King. (Dkt. No. 35-4.) All opined
either that Plaintiff’s injuries were sustained as a result of the
crash, or that such injuries could have been sustained as a result
of the crash. Plaintiff also testified during her deposition about
two physicians who treat her for her NOMID condition, Dr. Goldbach-
Mansky and Dr. Scott Paul. (Pl. SMF ¶¶ 13, 17.) She testified that
as a result of the crash, she has experienced a flareup of NOMID.
Because none of the treating physicians were disclosed as experts,
they may not testify about the causation of Plaintiff’s injuries
but may testify about their treatment and diagnoses and Plaintiff’s
history.
Plaintiff proposes the Court treat 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.
Nor does it change the calculus that Plaintiff disclosed two
treating physicians in initial Rule 26(a)(1) fact witness
disclosures. The Seventh Circuit made clear in Musser v. Gentiva
Health Sys. that disclosing a person as a fact witness and
disclosing a person as an expert witness are two distinct acts.
356 F. 3d 751, 757 (7th Cir. 2004); see also Coleman v. Cook Cty.,
2010 WL 4284920, at *5-6 (N.D. Ill. Oct. 20, 2010)(“[T]here is no
doubt after Musser that a treating physician who is to testify
under Federal Rule of Evidence 702 must be identified in
disclosures pursuant to Rule 26(a)(2), even if the treating
physician was previously disclosed as a fact witness”).
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 under the same logic: Plaintiff’s claim requires
her to prove that the plane crash caused her emotional distress,
which requires expert testimony. Because Plaintiff has not
disclosed her therapists, Shawn Flynn and Carolen King, as experts
under FRCP 26(a)(2), she will be unable to prove causation and the
Court should grant Defendants Summary Judgment at least with
respect to her emotional distress claims. Defendants also contend
that the “causation rule” for emotional distress under the Montreal
Convention requires Plaintiff to prove that her 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 her own “perceptions of her physical
and mental health during the relevant time period,” and Flynn and
King may testify about their observations, diagnoses, and
treatment of Plaintiff. Saccameno, 2018 WL 10609875, at *2. 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 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 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 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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