Petition for Writ of Certiorari — Olympic Airways v. Husain

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No. 02 1343 MAR 12 2003

OFFICE OF (4k GK

Supreme Court of the United States

OLYMPIC AIRWAYS,

Petitioner,

RUBINA HUSAIN, ET. AL.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

ANDREW J. HARAKAS

Counsel of Record

DIANE WESTWOOD WILSON

CONDON & FORSYTH LLP

685 Third Avenue

New York, New York 10017

(212) 490-9100

Counsel for Petitioner

Olympic Airways

QUESTION PRESENTED

Whether the “accident” condition precedent to air car-

rier liability for a passenger's death under Article 17 of

the Warsaw Convention is satisfied when a passenger's

pre-existing medical condition is aggravated by exposure

to a normal condition in the aircraft cabin, even if the

carrier’s negligence were a link in the chain of causation?

The Ninth Circuit’s answer to this question in the affir-

mative directly conflicts with the Third and Eleventh Cir-

cuit decisions in Abramson vy. Japan Airlines, Co., Ltd.,

739 F.2d 130 (3d Cir. 1984), cert. denied, 470 U.S. 1059

(1985) and Krys v. Lufthansa German Airlines, 119 F.3d

1515 (11th Cir. 1997), cert. denied, 522 U.S. 1111

(1998), and is contrary to the Court’s decision in Air

France v. Saks, 470 U.S. 392 (1985).

ie ii

PARTIES TO THE PROCEEDING TABLE OF CONTENTS

The following persons and entities were parties before

the United States Court of Appeals for the Ninth Circuit:

QUESTION PRESENTED ...... tteeeeeeeeeeeeees

1. Petitioner OLYMPIC AIRWAYS.

PARTIES TO THE PROCEEDING ..............

2. Respondents Rubina Husain, Hannah Husain, Sarah

MD.” aw Hussin and the Estate of Abid M. Hansen, RULE 29.6 CORPORATE DISCLOSURE

= STATEMENT ........cccccscccscececeeceveees

RULE 29.6 CORPORATE DISCLOSURE TABLE OF AUTHORITIES .............00.000+-

STATEMENT

OPINIONS BELOW ................6 000 c seen eens

Petitioner OLYMPIC AIRWAYS is a foreign corpo-

ration organized and existing under the laws of the Hel-

STATEMENT OF THE BASIS FOR

lenic Republic of Greece with the majority of its shares

TEENS « cnccccccvcccecocccsscccccece

owned by the government of Greece. No parent or pub- S

licly held company owns 10% or more of the stock of + * STATUTORY AND TREATY PROVISION |

petitioner OLYMPIC AIRWAYS. IIE ov ccoccccesecccccccccccccccccees

STATEMENT OF THE CASE...............+++>.

A. The Nature of the Case ...............-.

B. Statement of the Relevant Facts........

C. The Findings of Fact and Conclusions

of Law of the District Court............

D. The Decision of the Court of Appeals

PROB oc ccccccccccccccccesccccccccecccces

PAGE

I. THE DECISION OF THE COU

CONFLICTS WITH THE THIRD AND aa

ELEVENTH CIRCUITS BECAUSE IT

ALLOWS RECOVERY FOR AN INJURY

CAUSED BY A PASSENGER’S INTERNAL

REACTION TO NORMAL FLIGHT

uO cbuackesbadbienseddeded ts 11

1. The Third Circuit Abramson

SN cicebaddeidoiekoee ine, 11

2. The Eleventh Circuit Krys Decision.... 12

3. _ The Ninth Circuit Decision Below ..... 14

Il. THE COURT BELOW HAS CREATED

A NEW DEFINITION OF “ACCIDENT”

THAT IS NOT RECONCILABLE WITH

THE COURT'S DECISION IN SAKS,

THE STRUCTURE OF THE CONV

a... 16

III. THE QUESTION PRESENTED IS

IMPORTANT AS THE LOWER

COURTS ARE MISAPPLYING

ARTICLE 17 AND SAKS TO

CIRCUMVENT THE RESULT

MANDATED BY TSENG.................... 20

CONCLUSION

APPENDIX

TABLE OF AUTHORITIES

Cases: PAGE

Abramson v. Japan Airlines, Co., Lid.,

739 F.2d 130 (3d Cir. 1984),

cert. denied, 470 U.S. 1059 (1985) ......... passim

Air France v. Saks, 470 U.S. 392 (1985) ........ passim

Carey v. United Airlines, 255 F.3d 1044

(Sth Cir. 2001). ........ cece eee ee cece eeenenees 18, 22

Eastern Airlines v. Floyd, 499 U.S. 530 (1991) . 17, 21

El Al Israel Airlines Ltd. v. Tseng,

525 U.S. 155 (1999) ............ 13n, 17, 18, 20-22

Fischer v. Northwest Airlines, 623 F. Supp. 1064

(N.D. Ill. 1985)........ 2. cece cece e eee e eee eees 10n

Fulop v. Malev Hungarian Airlines,

175 F. Supp. 2d 651 (S.D.N.Y. 2001) ....... 21

Gupta v. Austrian Airlines, 211 F. Supp. 2d 1078

(N.D. Il. 2002) .... 2.0... cece eee e cece ee eeees 21

Hipolito v. Northwest Airlines, Inc.,

2001 WL 861984 (4th Cir. July 31,

BEBE) oc ccccccccccccccccccesescecccoccccsess 10n, 15n

Krys v. Lufthansa German Airlines,

119 F.3d 1515 (11th Cir. 1997),

cert. denied, 522 U.S. 1111 (1998) ......... passim

McCaskey v. Continental Airlines, Inc.,

159 F. Supp. 2d 562 (S.D. Tex. 2001)....... 21

Rajcoorar v. Air India Ltd., 89 F. Supp. 2d 324

(E.D.N.Y. 2000) ........- 0. ce cee ence ee eeeeees 10n

? PAGE

Saks v. Air France, 724 F.2d 1383 (9th Cir.

1984), rev'd, 470 U.S. 392 (1985) .......... 22

Tandon v. United Air Lines, 926 F. Supp. 366

SNe GED counsuctececconecanneteuetess 10n

Walker v. Eastern Airlines, Inc.,

775 F. Supp. 111 (S.D.N.Y. 1991)........... 10n

Zicherman v. Korean Air Lines, 516 U.S. 217

SUG asadidncensdsdndondunntecesindesnnneaes 21

Treaties, Statutes and Agreements:

Convention for the Unification of Certain Rules

Relating to International Transportation

by Air, October 12, 1929, 49 Stat. 3000,

T.S. No. 876, 137 L.N.T.S. 11 (1934),

reprinted in note following 49 U.S.C.A.

ee I sii ddan cetthecilekinth thle koh la dei passim

Agreement Relating to Liability Limitations

of the Warsaw Convention and the Hague

Protocol, CAB Agreement 18900, approved

by CAB Order E-23680, May 13, 1966,

CO 3, 18n

ee Cas OF Bee ndencccnsccoscnnesnnnesecicnes l

ee ns Oh OD coctnvncédecessentonsessécsineses 3

ae Case OP EEE oxudcedesnaunvnctevesccanededneces 3, 6n

a Es GENE 06. dsdseccsennddansnedadedibaames 3

ee an © GED coceneccancacecenadusoussnecesess 2

Be Geiss OH GD ctcsnecssécccécccsdndnctecocesesss 3n

vil

PAGE

IBU.S.C. § 1605 ....... cece cece eee ener eee ereeees 6n

Other Authorities:

Second International Conference on Private

Aeronautical Law, Oct. 4-12, 1929,

Warsaw Convention Minutes (R. Horner ni

& D. Legrez transl. 1975) .....--++0e++eeee

Petitioner OLYMPIC AIRWAYS (“OLY MPIC’’) respect-

fully requests that a writ of certiorari issue to review the

judgment and opinion of the United States Court of

Appeals for the Ninth Circuit entered on December 12,

2002.

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Ninth Circuit is officially reported at 316 F.3d

829 (9th Cir. Dec. 12, 2002) and is reproduced in the

Appendix hereto at A la-21a.' The Amended Findings of

Fact and Conclusions of Law of the District Court is

officially reported at 116 F. Supp. 2d 1121 (N.D. Cal.

Oct. 3, 2000) (Breyer, J.) and is reproduced at A 32a-

80a. The Supplemental Findings of Fact and Conclusions

of Law of the District Court is unofficially reported at

2000 WL 1780264, No. C 99-1400 CRB (N.D. Cal. Nov.

28, 2000) and is reproduced at A 23a-3 la.

STATEMENT OF THE BASIS

FOR JURISDICTION

The judgment of the Court of Appeals for the Ninth

Circuit was entered on December 12, 2002 and this Peti-

tion has been filed within 90 days of that date. The juris-

diction of the Court is invoked under 28 U.S.C.

§ 1254(1).

STATUTORY AND TREATY

PROVISIONS INVOLVED

The applicable treaty is the Convention for the Uni-

fication of Certain Rules Relating to International Trans-

| References preceded by “A” refer to pages in the Appendix

hereto.

portation by Air, Oct. 12, 1929, 49 Stat. 3000, T.S. No

876 (1934) (reprinted in note following 49 U.S.C.A.

§ 40105 (1997) (“Warsaw Convention”). The pertinent

provisions are set forth in the Appendix at A 81a-84a.

STATEMENT OF THE CASE

A. The Nature of the Case

This Petition involves the legal question of whether

as a matter of treaty law, a normal condition in the air-

craft cabin, which aggravates a passenger's pre-existing

medical condition, can meet the “accident” condition

precedent to liability under Article 17 of the Warsaw

Convention, even if crew negligence was a link in the

chain of causation, a consideration that expressly falls

under Article 20(1) of the Convention.

Plaintiffs Rubina Husain (individually and as personal

representative of the estate of decedent), Hannah Husain

Sarah Husain and Isaac Husain [hereinafter “plaintiffs” ]

brought an action against OLYMPIC in California Supe-

rior Court for Alameda County to recover damages as a

result of the death of Abid M. Hanson, M.D. [hereinafter

the “decedent” or “Dr. Hanson”] on January 4, 1998

while on board OLYMPIC flight 417 from Athens

Greece to New York. A 3a. Plaintiffs alleged that Dr.

Hanson died as a result of an asthma attack caused by

“exposure to ambient cigarette smoke in the passenger

cabin of OLYMPIC flight 417. A 3a.

OLYMPIC timely removed the action to the United

States District Court for the Northern District of Cali-

fornia on March 23, 1999 under 28 U.S.C. § 1441. A

33a. The jurisdiction of the district court was based upon

the Foreign Sovereign Immunities Act (28 U.S.C.

§ 1330)? and federal question (28 U.S.C. § 1331) under

the Warsaw Convention, a treaty of the United States. A

33a. The jurisdiction of the Court of Appeals was based

upon 28 U.S.C. § 1291.

It is undisputed that the liability of OLYMPIC is gov-

erned exclusively by the Warsaw Convention, as sup-

plemented by the Montreal Agreement,’ as decedent’s

death occurred during the course of “international trans-

portation by air” within the meaning of Article | of the

Convention. See Warsaw Convention, Article 1 (A 81a).*

Article 17 of the Warsaw Convention creates air carrier

liability for passenger injury or death if caused by an

“accident” within the meaning of the Convention. See

Air France v. Saks, 470 U.S. 392, 405-07 (1985). The

Warsaw Convention, together with the Montreal Agree-

ment, serves to limit an air carrier’s liability under Arti-

cle 17 for a passenger’s bodily injury or death to the sum

of $75,000, unless the death was proximately caused by

the “wilful misconduct” of the air carrier within the

meaning of Article 25 of the Convention, in which event

the monetary limit on recoverable damages is not avail-

able to the carrier.

2 OLYMPIC is a “foreign state” within the meaning of the 28

U.S.C. § 1603 of the Foreign Sovereign Immunities Act, as the major-

ity of its shares are owned by the government of Greece. A 33a, n.1.

3 Agreement Relating to Liability Limitations of the Warsaw

Convention and the Hague Protocol, CAB Agreement 18900,

approved by CAB Order E-23680, May 13, 1966, 31 Fed. Reg. 7302

(1966) (“Montreal Agreement”). Pursuant to the Montreal Agreement,

air carriers, by special contract, voluntarily agreed to increase the

limit of liability to $75,000 and to waive the defense of all necessary

measures for passenger injury or death set forth in Article 20(1) (A

83a) of the Convention. See Saks, 470 U.S. at 406-07 (1985).

4 Decedent was traveling pursuant to a ticket that provided for

round-trip transportation by air, U.S.—Egypt—U.S.

B. Statement of the Relevant Facts

The following facts are based upon the Findings of

Fact of the district court as adopted by the Court of

Appeals (A 3a-9a) and are not disputed for purposes of

this Petition.

Decedent’s Pre-Existing Medical Condition. Dece-

dent, Abid M. Hanson, M.D., was 52 years old at the

time of his death. A 3a. For more than 20 years prior to

his death, Dr. Hanson suffered from asthma for which he

did not receive regular treatment. A 4a. Dr. Hanson also

suffered from severe food allergies but the extent of

which was unclear. A 4a-Sa.

In the two years prior to his death, Dr. Hanson had

suffered two medical emergencies that the record shows

may have been caused by asthma or food allergies. A Sa.

At trial, experts for both parties agreed that at least one

of these episodes was likely caused by food-related

allergies. A 5a. In light of his existing medical condi-

tion, Dr. Hanson carried an emergency kit containing

epinephrine in the event of an allergic reaction to food.

A 5a. In addition, Dr. Hanson regularly carried and used

a Proventil/Albuterol inhaler to aid his breathing. A 4a.

| The Trip to Cairo. In December 1997, Dr. Hanson and

his family flew from San Francisco to Athens and Cairo

for vacation. The trip involved a stop in New York

where Dr. Hanson learned that OLYMPIC allowed smok-

ing on international flights. A 5a. Dr. Hanson and his

family asked for and were assigned seats in the non-

a section. A 5a. The flight to Cairo was unevent-

ul. a.

The Incident on the Return Trip to New York. On

January 4, 1998, Dr. Hanson began the return trip from

Cairo to the United States via Athens. A 6a. Dr. Hanson

was seated in the non-smoking section on the flight from

Cairo to Athens and did not experience any breathing

problems. A 6a. During a three to four hour layover in

Athens, however, Dr. Hanson began having problems

breathing. A 6a. The airport waiting area was very

smoky and Dr. Hanson used his inhaler. A 6a.

Upon boarding OLYMPIC flight 417 from Athens to

New York, Dr. Hanson and his family noticed that Dr.

Hanson was seated in non-smoking row 48 and that the

smoking section began in row 51.° A 6a, n. 3. Ms. Husain,

Dr. Hanson’s wife, approached OLYMPIC flight atten-

dant Maria Leptourgou, informed her that Dr. Hanson

could not be near the smoking section, and asked Ms.

Leptourgou to move Dr. Hanson to another non-smoking

seat. A 6a. Ms. Leptourgou responded by telling Ms.

Husain to “have a seat.” A 6a. After all of the passengers

were seated, but before take-off, Ms. Husain again

approached Ms. Leptourgou and asked that she move Dr.

Hanson to a different non-smoking seat, explaining that

he was allergic to smoke. A 7a. Ms. Husain testified that

Ms. Leptourgou replied that she could not transfer Dr.

Hanson to another seat because the plane was “totally

full,” and that she was too busy at the moment to assist

Dr. Hanson. A 7a. Discovery revealed that flight 417

had 11 unoccupied seats: 2 business class; 6 non-smok-

ing economy class; and 3 smoking economy class. A 7a,

n. 5.

Shortly after take-off, the passengers in the smoking

section began to smoke and Dr. Hanson indicated to his

wife that the smoke was bothering him. A 7a. Ms.

Husain approached Ms. Leptourgou and told her that she

needed to move Dr. Hanson for health reasons. A 7a. Ms.

Leptourgou again explained that she could not move Dr.

5 The aircraft was a Boeing 747 with 426 seats in 56 rows. In

economy class, rows 14-50 were in the non-smoking section and rows

51-56 were in the smoking section. A 6a, n. 3.

Hanson because the “plane is full,” but that Ms. Husain

could ask other passengers if they would switch seats

with Dr. Hanson. A 7a. Ms. Husain then returned to her

seat and took no further action. A 40a.

After the meal service, the smoking increased and Dr.

Hanson’s breathing problems worsened. A 8a. Dr. Han-

son walked to the front of the cabin to get some fresh air.

A 8a. Upon reaching the front of the cabin, Dr. Hanson

asked for his epinephrine kit, which Ms. Husain

retrieved and then administered a shot. A 8a. She then

went to notify Dr. Umesh Sabharwal, an allergist and

family friend who was traveling with Dr. Hanson and his

family. A 8a. Dr. Sabharwal helped Dr. Hanson to the

floor, administered another shot of epinephrine, then

began performing CPR and also administered a shot of

Bricany|l. A 8a. Despite the efforts of Dr. Sabharwal and

other passengers who assisted, Dr. Hanson died. A 8a.

No autopsy was performed to determine the direct cause

of death. A 8a.

C. The Findings of Fact and Conclusions of Law of

the District Court

Following the denial of OLYMPIC’s motion for sum-

mary judgment, which argued that Dr. Hanson’s death

was not caused by an “accident,” a precondition to lia-

bility under Article 17 of the Warsaw Convention, the

case proceeded to trial.® At trial, plaintiffs argued that

Dr. Hanson died from a severe asthma attack caused by

inhaling second-hand smoke. OLYMPIC argued that Dr.

Hanson’s death was the result of an allergic reaction to

food or some other medical problem unrelated to the

Foreign Sovereign Immunities Act, which provides only for non-jury

civil actions. 28 U.S.C. §§ 1330(a), 1605. A 33a, n. 1.

smoke and, in any event, was not caused by an Article

17 “accident.”

The district court issued its findings of fact and con-

clusions of law on August 28, 2000, as amended on

October 3, 2000.’ In analyzing the “accident” require-

ment of Article 17 of the Warsaw Convention, the dis-

trict court specifically recognized that “the smoke in the

cabin was not the ‘unusual’ or ‘unexpected’ event which

caused Dr. Hanson’s death, although . . . the smoke

undoubtedly had a significant place in the causal chain.”

A 5la. In fact, while the district court found that smoke

exposure during flight 417 was the primary cause of Dr.

Hanson’s death, the court held that Ms. Leptourgou’s

failure to accede to Ms. Husain’s requests to reassign Dr.

Hanson to another seat on the aircraft was an “accident”

under Article 17 of the Warsaw Convention which

proximately caused his death. A 59a-60a. The district

court also found Dr. Hanson 50% at fault for his own

death in that he failed to take any action to change his

seat. -A 78a. The district court then found Ms.

Leptourgou’s refusal to reassign Dr. Hanson to another

non-smoking seat constituted “wilful misconduct” under

Article 25 of the Warsaw Convention. A 67a.

The district court awarded plaintiffs $1,400,000, but

reduced the award by 50% due to Dr. Hanson’s com-

parative negligence. A 79a-80a. On November 28, 2000,

the district court issued supplemental findings of fact

and conclusions of law awarding plaintiffs an additional

$1,400,000 (reduced to $700,000) in non-pecuniary dam-

ages. A 31a. Final judgment in the amount $1,400,000

was entered on November 28, 2000. A 22a. OLYMPIC

timely appealed.

7 The Amended Findings of Fact and Conclusions uf Law only

made technical corrections. All references herein are to the Amended

Findings and Conclusions.

D. The Decision of the Court of Appeals Below

The Court of Appeals affirmed the district court’s

findings and conclusion that Dr. Hansen’s death was

caused by an Article 17 “accident.”

Article 17 Accident. The Court of Appeals below

found that the OLYMPIC flight attendant’s (Ms. Lep-

tourgou’s) failure to move Dr. Hanson to a different non-

smoking seat violated OLYMPIC’s procedures and was

an “accident” under Article 17 of the Warsaw Conven-

tion. A 14a. The Court below stated:

Ms. Leptourgou’s failure to act was more egregious

in light of the simple nature of Ms. Husain’s request,

which could easily have been satisfied without

interference with the airplane’s normal operation.

Combined, these factors bring Ms. Leptourgou’s

failure to assist Dr. Hanson within the meaning of

an “accident” for Article 17 purposes. Her conduct

was Clearly external to Dr. Hanson, and it was unex-

pected and unusual in light of industry standards,

Olympic policy, and the simple nature of Dr.

Hanson’s requested accommodation. The failure to

act in the face of a known, serious risk satisfies the

meaning of “accident” within Article 17 so long as

reasonable alternatives exist that would substan-

tially minimize the risk and implementing these

alternatives would not unreasonably interfere with

the normal, expected operation of the airplane.

A 14a.

Article 17 Causation. Although the Court below first

recognized that for “a carrier to be liable for an injury,

the passenger must prove the accident caused the

injury,” the Court held that the “accident need not be the

sole cause of the injury,” and that it is sufficient if it is

any “ ‘link in the chain.’ ” A 16a. The Court then found

that “the exposure to smoke and failure to move Dr.

Hanson is such a link.” A 16a-17a.

Article 25 Wilful Misconduct. The Court of Appeals

also affirmed the district court's finding that the death of

Dr. Hanson was proximately caused by the wilful mis-

conduct of OLYMPIC. The Court stated: “Ms. Leptour-

gou’s failure to take action, either by moving Dr. Hanson

or by notifying the chief cabin attendant of Ms. Husain s

request to have her husband moved, was willful mis-

conduct.” A 19a.

REASONS FOR GRANTING THE WRIT

Article 17 of the Convention sets forth the conditions

precedent to holding an air carrier liable for the death of

a passenger. Article 17 provides:

The carrier shall be liable for damage sustained in

the event of the death or wounding of a passenger or

any other bodily injury suffered by a passenger, if

the accident which caused the damage so sustained

took place on board the aircraft or in the course of

any of the operations of embarking or disembarking.

49 Stat. 3018 (emphasis added). Thus, carrier liability

only arises if an “accident” caused the passenger injury

or death

Although the meaning of the term “accident” was

addressed by the Court in Air France v. Saks, 470 U.S.

392 (1985), which involved an action against the carrier

by a passenger who suffered an ear injury caused by nor-

mal cabin pressurization changes during landing, the

lower courts are in conflict as to the proper application

of Article 17 and the Court's rulings in Saks. In Saks, the

Court defined an “accident” as “an unexpected or

unusual event or happening that is external to the pas-

senger.” /d. at 405. The Court made clear that “when the

injury indisputably results from the passenger’s own

internal reaction to the usual, normal, and expected oper-

ation of the aircraft, it has not been caused by an acci-

dent, and Article 17 of the Warsaw Convention cannot

apply.” Jd. at 406. For this reason, although the “defi-

nition should be flexib y #»plied after assessment of all

the circumstances surrounding a passenger's injuries,”

issues of crew negligence are not implicated or relevant

because the “accident” inquiry focuses solely on the

“nature of the event which caused the injury rather than

the care taken by the airline to avert the injury.” 470

U.S. at 407 (emphasis in original).

The courts before and after Saks that have properly

applied the definition adopted in Saks have concluded

that if the cause of a passenger’s injury was due to the

passenger's Own internal reaction to the normal flight

there is no “accident,” even if the carrier’s negligence

aggravated the passenger’s pre-existing condition or was

a link in the chain of causation.* The decision of the

* See Krys v. Lufthansa German Airlines, 119 F.3d 1515, 1521-

22 (11th Cir. 1997), cert. denied, 522 U.S. 1111 (1998); Abramson v.

Japan Airlines, Co., Ltd., 739 F.2d 130, 133 (3d Cir. 1984), cert.

denied, 470 U.S. 1059 (1985); see also Hipolito v. Northwest Airlines,

Inc., 2001 WL 861984, at *2-3 (4th Cir. July 31, 2001) (affirming sum-

mary judgment dismissing action because passenger's death on board

an aircraft was not an Article 17 “accident,” even where there was alle-

gation of crew negligence); Rajcoorar v. Air India Ltd., 89 F. Supp. 2d

324, 328 (E.D.N.Y. 2000) (finding inadequate medical care does not

constitute an “accident”); Walker v. Eastern Air Lines, Inc., 775 F.

Supp. 111, 114 (S.D.N.Y. 1991) (stating that parties agreed that no

“accident” occurred when airline crew aggravated pre-existing con-

dition of passenger); Tandon v. United Air Lines, 926 F. Supp. 366,

369-70 (S.D.N.Y. 1996) (finding that airline crew's failure to respond

with adequate medical assistance to passenger suffering a heart attack

did not constitute an “accident”); Fischer v. Northwest Airlines, 623 F.

Supp. 1064, 1065 (N.D. Ill. 1985) (finding that no “accident” occurred

when defendants failed to immediately transport passenger to hospital).

Court below, however, necessarily rejects these cases in

its misapplication of the Warsaw Convention and Saks,

and creates a conflict with the Court of Appeals for the

Third and Eleventh Circuits.

THE DECISION OF THE COURT BELOW

CONFLICTS WITH THE THIRD AND

ELEVENTH CIRCUITS BECAUSE IT

ALLOWS RECOVERY FOR AN INJURY

CAUSED BY A PASSENGER’S INTERNAL

REACTION TO NORMAL FLIGHT CONDITIONS

The decision of the Court below is wrong and in direct

conflict with the decisions of the Court of Appeals for

the Third and Eleventh Circuits, which hold that when

an injury or death “indisputably results from the pas-

senger’s own internal reaction to the usual, normal, and

expected operation of the aircraft,” there can be no Arti-

cle 17 “accident,” even if the carrier's negligence aggra-

vated the passenger's pre-existing medical condition or

was a link in the chain of causation.

1. The Third Circuit Abramson Decision

In Abramson v. Japan Airlines, Co., Litd., 739 F.2d 130

(3d Cir. 1984), cert. denied, 470 U.S. 1059 (1985), a

leading pre-Saks® case with facts very similar to this

case, the issue was whether the alleged airline's aggra-

vation of a pre-existing injury during the course of a

9 The Abramson case applied the same standard adopted by

Saks and was cited by the Court in Saks as an example of the category

of cases where “routine travel procedures . . . produce an injury due

to the peculiar internal condition of a passenger,” which the Court

found does not fit within the definition of “accident” for purposes of

the Convention. See Saks, 470 U.S. at 405.

normal flight is an Article 17 “accident.” The Third Cir-

cuit answered no.

Plaintiff in Abramson suffered an attack from a pre-

existing paraesophageal hiatal hernia while traveling

from Anchorage to Tokyo on Japan Airlines (“JAL”).

739 F.2d at 131. When plaintiff's wife asked the flight

attendant for a place where plaintiff could lie down and

employ a self-help remedy, the stewardess responded

that there were no empty seats and plaintiff was required

to remain in his assigned seat. Jd. Discovery, however,

revealed that there were nine empty seats in first class.

Id. Plaintiff brought an action against JAL, claiming that

JAL’s “refusal to aid him” aggravated his injury which

was an “unusual and unexpected happening” and, thus,

an Article 17 “accident.” Jd. at 132. Applying its

“unusual or unexpected happening” test, the Court of

Appeals rejected the passenger's arguments and found

that JAL’s alleged “acts and omissions” did not consti-

tute an “accident”:

In the absence of proof of abnormal external factors,

aggravation of a pre-existing injury during the

course of a routine and normal flight should not be

considered an “accident” within the meaning of

Article 17.

Id. at 133.

. Thus, “the occurrence that allegedly aggravated plain-

tiff’s condition was not an ‘accident’ within the terms of

Article 17 of the Warsaw Convention.” /d. at 135.

2. The Eleventh Circuit Krys Decision

Similarly, in Krys v. Lufthansa German Airlines, 119

F.3d 1515 (11th Cir. 1997), cert. denied, 522 U.S. 1111

(1998), the issue was whether the alleged aggravation of

a pre-existing condition due to crew negligence during

the course of a normal flight is an Article 17 “accident.”

The Eleventh Circuit answered no.

In Krys, a passenger who suffered a heart attack dur-

ing a transatlantic flight brought an action against the air

carrier claiming that the crew’s failure to properly respond

to his heart attack symptoms (i.e., make an emergency

landing rather than continuing to its destination), aggra-

vated the damage to his heart. 119 F.3d at 1517. The air

carrier argued that aggravation of a pre-existing condi-

tion due to crew negligence is an “accident” (thereby

limiting the carrier’s liability to $75,000). Jd. at 1519.'°

The Eleventh Circuit rejected the airline’s argument and

found that there was no Article 17 “accident.” The Court

found that the only correct approach to analyzing the

“accident” requirement is to look “at the factual events,

as opposed to an assertion of ‘crew’ negligence. .. .”

Id. at 1521-22. Unlike the Court below, the Eleventh Cir-

cuit recognized that this is the only approach which is

consistent with the structure of the Convention and the

Court’s decision in Saks. Id. The Court explained:

if we substitute a purely factual description of the

relevant events in place of the legal conclusion rep-

resented by “crew negligence,” the conclusion that

no “accident” occurred is seen as the more reason-

able conclusion. If, in Abramson, the aggravating

event is having to sit upright in an airline seat

throughout the duration of the flight, then it seems

clear that the aggravation does not arise from an

“unexpected or unusual event”—instead, the aggra-

vation injury arises solely from the “passenger's

own internal reaction to the usual, normal, and

expected operation of the aircraft.” By the same

10 Krys was decided prior to the Court's exclusivity decision in

El Al Israel Airlines, Ltd. v. Tseng, 525 U.S. 155 (1999) and the issue

of exclusivity had not been preserved for appeal by the air carrier.

Krys, 119 F.3d at 1518, n.8.

token, if, in the instant case, the aggravating event

is the continuation of the flight from its scheduled

point of departure to its scheduled point of arrival,

[footnote omitted] then it seems clear that the

aggravation injury arises not from an “unexpected

or unusual happening,” but rather from the “pas-

senger’s own internal reaction to the usual, nor-

mal, and expected operation of the aircraft.”

119 F.3d at 1521 (emphasis added and citations omitted).

3. The Ninth Circuit Decision Below

Looking to the purely factual description of relevant

events, the aggravating event is Dr. Hanson remaining in

his assigned non-smoking seat and being exposed to

ambient smoke, which allegedly aggravated his pre-

existing condition leading to his death. As in Abramson

and Krys, the aggravation injury arises not from an

“unexpected or unusual happening,” but rather from the

“passenger’s own internal reaction to the usual, normal,

and expected operation of the aircraft.”

The Court below professed that its decision was fac-

tually distinguishable from Krys and Abramson." A plain

reading of the facts and the holdings of each case, how-

ever, evince that they are not genuinely distinguishable:

¢ As here, Abramson and Krys involved a pas-

senger with a pre-existing medical condition:

i The Court below found that in Krys the crew was not aware

of a need for immediate action, and in Abramson, the crew was not

aware that the passenger had an urgent medical condition nor were

there several requests to move him (although the need for immediate

action was surely assumed as the passenger's wife, like Dr. Husain’s

wife, requested a different seat assignment because of her husband's

medical condition). A 13a-14a.

Abramson—a pre-existing hernia condition

Krys—a pre-existing heart condition

This case—a pre-existing asthmatic con-

dition

¢ As here, Abramson and Krys involved an injury

caused by the passenger being subjected to the

normal conditions of the flight, which resulted

in injury:

Abramson—remaining in his economy

class seat unable to lie down

Krys—continuation of the flight to its

scheduled destination

This case—remaining in his non-smoking

seat exposed to ambient smoke

* As here, Abramson and Krys involved allega-

tions of crew negligence that was an alleged

link in the chain of causation:

Abramson—failure to provide the passen-

ger with additional seats

Krys—failure to make an emergency land-

ing/misdiagnosis

This case—failure to move Dr. Hanson to

another non-smoking seat

¢ Unlike here, Abramson and Krys found no

Article 17 “accident.”

Accordingly, under the Third and Eleventh Circuit’s

interpretation of Article 17 and the Eleventh Circuit’s

interpretation of Saks, Dr. Hanson’s death would not be

considered to have been caused by an “accident.”'*

12 The Fourth Circuit's interpretation of Article 17 in the unre-

ported decision of Hipolito, 2001 WL 861984, at *2-3, is consistent

Under the Ninth Circuit’s interpretation of Article 17

and Saks, it is. The conflict is clear, the conflict is direct

and the conflict is irreconcilable. Certiorari should be

granted to resolve this conflict and provide guidance to

the lower courts as to what is an Article 17 “accident.”

THE COURT BELOW HAS CREATED A NEW

DEFINITION OF “ACCIDENT” THAT IS NOT

RECONCILABLE WITH THE COURT’S

DECISION IN SAKS, THE STRUCTURE

OF THE CONVENTION AND KRYS

The Court below incorrectly shifted the focus of the

“accident” requirement from an inquiry into the nature

of the event which caused the injury (i.e., the smoke), to

the care taken by the airline to avert the injury (i.e., a

flight attendant’s failure to move Dr. Hanson to another

non-smoking seat), thereby creating a new “accident”

standard as follows:

The failure to act in the face of a known, serious

risk satisfies the meaning of “accident” within Arti-

cle 17 so long as reasonable alternatives exist that

would substantially minimize the risk and imple-

menting these alternatives would not unreasonably

interfere with the normal, expected operation of the

airplane.

A 14a (emphasis added).

with the Third and Eleventh Circuits and, thus, also is in conflict with

the Ninth Circuit. In Hipolito, the Fourth Circuit affirmed summary

judgment dismissing the action because the passenger’s asthma-

related death was not an Article 17 “accident,” even though there was

an allegation of crew negligence. /d.

Saks, however, should have made clear to the Court

below that the focus of the “accident” inquiry is into the

nature of the event which caused the injury, and not the

care taken by the airline to avert the injury. 470 U.S. at

407. The “accident” standard developec by the Court

below misconstrues the nature of the liability created by

the Warsaw Convention by improperly focusing the

“accident” inquiry on reasonableness, foreseeability and

the carrier’s mental state—neither the Convention nor

Saks makes the “accident” inquiry contingent upon the

perception of a risk, “reasonable alternatives” or whether

these alternatives “would not unreasonably interfere with

the normal, expected operation of the aircraft.”

The new “accident” standard created by the Court

below ignores Saks and injects into Article 17 the con-

cepts of the “absence of negligence” (Article 20(1)) and

“wilful misconduct” (Article 25). The Court should pro-

vide guidance to the lower courts that this treaty does

not permit the courts to relieve the passenger from meet-

ing the condition precedent to establishing a right of

recovery under Article 17 through an analysis of the

negligence of a carrier’s employee.

One of the primary goals of the Warsaw Convention

was to limit the liability of air carriers. See El Al Israel

Airlines, Ltd. v. Tseng, 525 U.S. 155, 169-70 (1999);

Eastern Airlines v. Floyd, 499 U.S. 530, 546 (1991). As

explained by the Court in Tseng, 525 U.S. at 170, the

Warsaw Convention balances the interest of the pas-

senger seeking to recover damages for injuries and the

interest of the carrier to limit its liability.'* The Con-

3 Before the Warsaw Convention was adopted, carriers in civil

law countries were permitted to contractually disclaim liability for

passenger injury or death. The drafting history of the Convention

reflects the drafters’ compromise with respect to passengers, between

no liability and exposure to unlimited liability. See Second Interna-

vention was drafted as a compromise between those

interests. Jd.

The preliminary draft of what eventually became Arti-

cle 17 [then draft Article 22] made the air carrier liable

“in the case of death, wounding, or other bodily injury

suffered by a traveler.” Saks, 470 U.S. at 401 (emphasis

added). The early Article 17 draft also contained lan-

guage that permitted the air carrier to avoid liability by

proving all reasonable measures were taken to avoid the

damage. /d. The drafting committee changed the liabil-

ity provisions, expressly narrowing the liability of the air

carrier to encompass only an injury “caused” by an

“accident.” Id. at 402-03; see Tseng, 525 U.S. at 173. In

addition, the all reasonable measures defense was

removed from the liability provision and placed into a

separate article [Article 20(1)].'* Thus, the “accident”

requirement of Article 17 is distinct from the due care

defense of Article 20(1), a distinction overlooked by the

Court below. See Saks, 470 U.S. at 407; Krys, 119 F.3d

at 1522. This drafting history, together with the goals of

the Convention, demonstrates that the initial “accident”

inquiry is not to be resolved by reference to foresee-

ability, alternatives or the degree of the carrier’s culpa-

bility, which were relegated to Article 20(1) and Article

25, respectively. See Saks, 470 U.S. at 407; Carey v.

United Airlines, 255 F.3d 1044, 1048 (9th Cir. 2001)

tional Conference on Private Aeronautical Law, Oct. 4-12, 1929,

Warsaw Convention Minutes at 47-48 (R. Horner & D. Legrez transl.

1975).

4 Article 20(1) provides an exception to the presumptive lia-

bility under Article 17 if the air carrier establishes that it took all nec-

essary measures to avoid the passenger’s injury or that it was

impossible to take such measures. Saks, 470 U.S. at 406-07. Pursuant

to the terms of the Montreal Agreement, this defense has been waived

for international flights that originate, terminate, or have stopping

points in the United States.

(definition of “accident” makes “no mention of the car-

rier’s motive or mental state whatsoever”). The Court in

Saks clearly stated:

The “accident” requirement of Article 17...

involves an inquiry into the nature of the event

which caused the injury rather than the care taken

by the airline to avert the injury.

470 U.S. at 407 (emphasis in original).

As explained by the Eleventh Circuit in Krys:

we think that looking at the factual events, as

opposed to an assertion of “crew negligence,” is in

accord with the design of the Warsaw Convention,

which provides carriers a “due care” defense. [Foot-

note omitted] Having provided for a defense turning

on the absence of negligence, we think it is unlikely

that the drafters intended that the initial “accident”

inquiry be resolved by reference to negligence.

[Citation omitted].

119 F.3d at 1522-23. Indeed, the fact that crew negli-

gence is irrelevant to the Article 17 “accident” inquiry is

confirmed by the ultimate holding in Krys, which after

finding that there was no “accident,” determined that the

air Carrier's conduct was negligent and upheld liability

under state law. Jd. at 1528.

The focus of the Court below on “crew negligence”

(i.e., the failure of the flight attendant to act in light of

what the Court considered to be the reasonable alterna-

tives), conflicts with structure of the Convention, the

meaning of Article 17 and its interpretation as applied in

Saks, and as followed by the Eleventh Circuit in Krys.

THE QUESTION PRESENTED IS IMPORTANT

AS THE LOWER COURTS ARE MISAPPLYING

ARTICLE 17 AND SAKS TO CIRCUMVENT

THE RESULT MANDATED BY TSENG

The proper interpretation of the “accident” condition

precedent to liability is of particular importance as there

is an increasing amount of health-related passenger lit-

igation (e.g., heart attacks, deep vein thrombosis (DVT))

and the issue arises in each action whether such pas-

sengers are entitled to recovery if an air carrier fails to

provide them with special accommodations even though

the injury is due to a pre-existing medical condition that

is aggravated by exposure to the normal and expected

conditions on the aircraft.

In El Al Israel Airlines, Ltd. v. Tseng, 525 U.S. 155

(1999), the Court addressed the question of the exclu-

sivity of the Warsaw Convention and held that “recovery

for a personal injury suffered ‘on board [an] aircraft or

in the course of any of the operations of embarking or

dismembarking,’ if not allowed under the Convention, is

not available at all.” Jd. at 161 (citation omitted).

Prior to Tseng, the majority of lower courts viewed

that an aggravation of a passenger’s pre-existing medi-

cal condition was not an Article 17 “accident,” even if

there were allegations of crew negligence. See supra

note 8. While Tseng did not implicate the meaning of the

term “accident,” courts, such as the district court below,"

have redefined “accident” for the sole purpose of cir-

1S The district court below rejected Krys and Abramson based in

part upon its concern for a dissolution of the carrier's duty of care and

perception of a “sudden sea change” as to the meaning of an “acci-

dent” after Tseng. A 58a.

cumventing the clear holding of Tseng. These post-Tseng

cases find that pre-7Tseng accident cases are not instruc-

tive and hold that an aggravation of a passenger's

pre-existing medical condition can be an Article 17

“accident” because, to hold otherwise, would deprive the

passenger of a potential remedy under state law. See

Gupta v. Austrian Airlines, 211 F. Supp. 2d 1078, 1084

(N.D. Ill. 2002) (holding that the carrier’s failure to

assist an ailing passenger from a pre-existing medical

condition may be an “accident;” pre-Tseng “accident”

Cases are not instructive because the Warsaw Convention

is now plaintiff's exclusive remedy); McCaskey v.

Continental Airlines, Inc., 159 F. Supp. 2d 562, 573

(S.D. Tex. 2001) (holding that reliance upon Abramson

and Krys, pre-Tseng decisions, was misplaced and that a

carrier's failure to respond to an injury suffered onboard

an aircraft may be an “accident”); Fulop v. Malev

Hungarian Airlines, 175 F. Supp. 2d 651, 666 (S.D.N.Y.

2001) (finding pre-Tseng holdings in Abramson and Krys

may have been affected by the non-exclusivity of the

Convention and are not controlling).

There is no basis in law for such a misapplication of

the term “accident.” In Saks and Tseng, the passenger

was left without a right of recovery and the treaty lan-

guage has not changed to deviate from this result. Sim-

ply because a passenger’s exclusive remedy is provided

by the Warsaw Convention does not change the Article

17 “accident” analysis, nor does it render pre-Tseng

decisions meaningless. The Court in Tseng specifically

made clear: “Postratification adjustments . . . are appro-

priately made by the treaty signatories,” not the courts.

525 U.S. at 673 n.12; see Zicherman v. Korean Air Lines

Co., 516 U.S. 217, 231 (1996) (“it is the function of

Congress, and not of this Court, to decide that domestic

law, alone or in combination with the Convention, pro-

vides inadequate deterrence.”); Floyd, 499 U.S. at 546

(Convention must be interpreted to give effect to

drafters’ concern of protecting the carrier rather than

providing full recovery to injured passenger); Carey, 255

F.3d at 1053 (“To the extent that such plaintiffs are left

without a remedy, no matter how egregious the airline’s

conduct, that is a result of the deal struck among the sig-

natories to the Warsaw Convention.”). As noted by Judge

Wallace in his prescient dissent in Saks, which rejected

similar reasoning by that Panel’s majority decision:

the majority’s reading of the Convention “is bot-

tomed on a social theory of compensation designed

to spread the burden of damages from travel to all

travelers,” a theory alien to the Convention’s lan-

guage, even accounting for the private Montreal

Agreement. Recovery for damages under article 17

of the Convention requires more than travel or an

occurrence: it requires an accident. Normal cabin

depressurization is no accident.

Saks v. Air France, 724 F.2d 1383, 1390 (9th Cir. 1984)

(Wallace, J., dissenting) (citations omitted), rev'd, 470

U.S. 392 (1985).

The Court should grant certiorari to provide definitive

guidance to the lower courts as to the proper interpre-

tation of Article 17, the Court’s decision in Tseng and to

ensure a consistent and correct application of the War-

saw Convention.

CONCLUSION

Based upon the foregoing reasons, the Petition for

Writ of Certiorari should be granted.

Dated: March 12, 2003

Respectfully submitted;

ANDREW J. HARAKAS

Counsel of Record

DIANE WESTWOOD WILSON

CONDON & FORSYTH LLP

685 Third Avenue, 14th Floor

New York, New York 10017

(212) 894-6700

Attorney for Petitioner

Olympic Airways

Of Counsel:

JOHN MAGGIO

APPENDIX

TABLE OF CONTENTS

Opinion of the United States Court of Appeals

for the Ninth Circuit, dated December 12,

District Court Supplemental Findings of

Fact and Conclusions of Law, dated

November 28, 2000

District Court Amended Findings of

Fact and Conclusions of Law, dated

gk ee

Relevant Articles of the Warsaw Convention

UNITED STATES COURT OF APPEALS

NINTH CIRCUIT

No. 00-14509

Argued and Submitted February 12, 2002

Filed December 12, 2002

RUBINA HUSAIN, individually and as personal repre-

sentative of the estate of; Abid M. Hanson, M.D.; Han-

nah Husain; Sarah Husain; Isaac Husain, by and through

their Guardian ad Litem, Rubina Husain,

Plaintiffs-Appellees,

OLYMPIC AIRWAYS,

Defendant-Appellant.

SUSIE INJIJIAN, Sterns and Walker, Oakland, CA, for

the plaintiff-appellee.

ANDREW J. HARAKAS, Condon and Forsyth, New

York, NY, for the defendant-appellant.

Appeal from the United States District Court

for the Northern District of California;

Charles R. Breyer, District Judge, Presiding.

D.C. No. CV-99-01400-CRB.

Before

REINHARDT and FISHER, Circuit Judges,

and MOLLOY, District Judge.*

OPINION

MOLLOY, District Judge:

l. Introduction

After a non-jury trial, the district court determined

that Dr. Abid M. Hanson’s death on Olympic Airways

(“Olympic”) Flight 417 was caused by an accident as

defined by Article 17 of the Warsaw Convention. The

trial judge also found the accident resulted from willful

misconduct by Olympic’s employees. The district court

awarded $1,400,000 in damages. Olympic appeals the

determinations of the district court and the award of

damages. We hold that the district court’s findings are

not clearly erroneous and we AFFIRM.

* The Honorable Donald W. Molloy, United States District

Judge for the District of Montana, sitting by designation.

II. Factual and Procedural Background

A. Overview

On January 4, 1998, 52 year-old Dr. Abid M. Hanson

died while a passenger on Olympic Flight 417 between

Athens, Greece and New York City. His death occurred

after he suffered complications when he was exposed to

ambient second-hand smoke while seated in the air-

plane’s non-smoking section three rows in front of the

smoking section. The plane had clearly demarcated sec-

tions for seating, one for smokers and one for non-smok-

ers, though no partition separated the two. Dr. Hanson’s

wife, Rubina Husain, had asked Olympic’s employees on

multiple occasions with increasing urgency to move Dr.

Hanson to another seat away from the smoking section.

She explained the critical reasons Dr. Hanson had to

move and made her concerns known about the conse-

quences of leaving him exposed to the offensive smoke.

Ms. Husain’s requests were ignored, primarily by flight

attendant Maria Leptourgou- Dr. Hanson died from a

severe asthma attack caused by the smoke exposure.

Plaintiffs filed suit in California Superior Court for

Alameda County on December 24, 1998. Olympic

removed the action to the United States District Court

for the Northern District of California on March 23,

1999. On February 25, 2000, Olympic moved for sum-

mary judgment claiming Dr. Hanson’s death was not

caused by an accident as defined by Article 17 of the

Warsaw Convention.' The district court denied the

motion for summary judgment without a written opinion

! The full name of the Warsaw Convention is the Convention

for the Unification of Certain Rules Relating to International Trans-

portation by Air, Oct. 12, 1929, 49 Stat. 3000, T.S. No. 876 (1934),

reprinted in note following 49 U.S.C. § 40105 [hereinafter Warsaw

Convention].

on March 24, 2000. A three-day bench trial was held

May 30 through June 1, 2000. After the parties presented

evidence, the district court asked for post-trial briefs and

agreed to hear closing arguments on July 20, 2000. Find-

ings of fact and conclusions of law were entered on

August 8, 2000 finding Ms. Leptourgou’s failure to

move Dr. Hanson to a new seat was an accident under

Article 17 of the Warsaw Convention and proximately

caused his death. The trial judge found Ms. Leptourgou’s

refusal to help Dr. Hanson constituted willful miscon-

duct under Article 25 of the Warsaw Convention.

The district court awarded Plaintiffs $1,400,000, but

reduced the award by 50% due to Dr. Hanson’s com-

parative negligence. On October 2, 2000, the district

court issued amended findings of fact and conclusions of

law. Supplemental findings of fact and conclusions of

law were issued on November 28, 2000 awarding Plain-

tiffs an additional $700,000 in non-pecuniary damages.

Final judgment was entered on November 28, 2000.

Olympic timely appealed.

B. Facts as Determined by the District Court’

For more than 20 years before his death on January 4,

1998, Dr. Hanson had been sensitive to secondhand

smoke and tried to avoid smoke-filled areas. He suffered

from asthma for which he did not receive regular treat-

ment. However, he regularly carried and used a Proven-

til/Albuterol inhaler to aid his breathing. The frequency

of Dr. Hanson’s use of the inhaler increased as he aged.

Dr. Hanson was also allergic to many foods, including

grapes, yeast and tomatoes. The extent of his allergies is

2 ‘See Husain v. Olympic Airways, 116 F.Supp.2d 1121

(N.D.Cal.2000).

unclear; however, Dr. Hanson often ate tomato-based

foods without suffering a reaction.

Before his death, Dr. Hanson had suffered two medi-

cal emergencies that may have been caused by asthma or

food allergies. In December 1996, Dr. Hanson and his

wife were at a smoky restaurant in Las Vegas, Nevada

for approximately ten minutes. Before returning to their

hotel room, Dr. Hanson and his wife shared a piece of

quiche and some cheese pizza. Shortly after returning to

the hotel room, Dr. Hanson began having breathing dif-

ficulties, to the extent that Ms. Husain called paramedics

and had to perform CPR. The paramedics gave Dr. Han-

son a shot of epinepherine and transported him to the

hospital where he remained overnight.

The cause of the Las Vegas attack is unclear. However,

at trial, experts for both parties agreed that the episode

was likely caused by food-related allergies. Following

the Las Vegas attack, Dr. Hanson began carrying an

emergency kit containing epinepherine.

During the summer of 1997, Dr. Hanson suffered

another attack after dining at the home of friends in Cal-

ifornia. After he returned from a post-dinner walk, Ms.

Husain noticed Dr. Hanson was having a difficult time

breathing and called paramedics. The paramedics gave

Dr. Hanson oxygen and observed him for a short period

of time. Dr. Hanson was not taken to the hospital, nor

was any epinepherine administered. The cause of the

breathing difficulties is unknown.

In December 1997, Dr. Hanson, Ms. Husain and their

family flew from San Francisco to Athens and Cairo for

vacation. The trip involved a stop in New York. Dr. Han-

son learned for the first time at the airport in New York

that Olympic allowed smoking on international flights.

Dr. Hanson and his family asked to be seated in the non-

smoking section and their request was honored. On the

flights to Athens and Cairo, the family was seated in

non-smoking seats away from the smoking section and

were not exposed to ambient smoke. Dr. Hanson did not

suffer from breathing problems during the trip.

On January 4, 1998, Dr. Hanson and his family began

the return trip from Cairo to the United States via

Athens. The family arrived at the Cairo airport early to

ensure they obtained non-smoking seats. Ms. Husain

showed the check-in agent a letter from Dr. Hanson’s

brother, who was also a doctor, indicating that Dr. Han-

son had asthma. The family was seated in the non-smok-

ing section on the flight from Cairo to Athens and Dr.

Hanson did not experience any breathing problems.

During a three to four hour layover in Athens, Dr.

Hanson began having problems breathing. The waiting

area was very smoky and Dr. Hanson was forced to use

his inhaler. An attempt to move to the slightly less smoky

first-class lounge was thwarted by airport officials.

Upon boarding Olympic Airways Flight 417 from

Athens to New York, Dr. Hanson and his family dis-

covered that they were seated in non-smoking seats, but

only three rows ahead of the smoking section which was

not partitioned off.’ Immediately after finding their

seats, Ms. Husain approached flight attendant Maria

Leptourgou, informed her that Dr. Hanson could not be

near the smoking section, and asked Ms. Leptourgou to

move him. Ms. Leptourgou responded by telling Ms.

Husain to “have a seat.”

3 ‘The airplane was a Boeing 747 with 426 seats in 56 rows.

Rows one through 13 were business class seats, while rows 14

through 56 were economy class. In economy class, rows 14 through

50 were non-smoking seats and the seats in rows 51 through 56 were

in the smoking section. Dr. Hanson was seated in row 48, seat E.

4 Ms. Leptourgou was not available for the trial and had not been

deposed. The district court noted that its factual findings regarding Ms.

After all of the passengers were seated, but before

take-off, Ms. Husain once again approached Ms. Lep-

tourgou and adamantly asked that she move Dr. Hanson

to another seat, explaining that he was allergic to smoke.

Ms. Leptourgou refused, stating that she was “too busy”

and the flight was “totally full.” Husain, 116 F.Supp.2d

at 1125.

Immediately after take-off, passengers in the smoking

section were allowed to begin smoking. From that point

forward, people in the smoking section were smoking

continuously, including people seated in rows 51 through

56 and people in other rows who moved back to the

smoking section to smoke and socialize. The smoke

began to envelope Dr. Hanson and his family. After Dr.

Hanson indicated that the smoke was bothering him, Ms.

Husain approached Ms. Leptourgou and, for the third

time on the airplane, told her that she needed to move

Dr. Hanson for health reasons. Ms. Leptourgou again

refused stating that the plane was full. She did tell Ms.

Husain that she and Dr. Hanson could ask other passen-

gers to switch seats, but they would not be assisted by

the flight crew. Despite one last plea for help by Ms.

Husain, Ms. Leptourgou refused to help Dr. Hanson find

another seat.°

Leptourgou were based primarily on Ms. Husain’s testimony, which the

district judge found “quite credible.” Husain, 116 F Supp.2d at 1125 n.

2. The district court also noted that Ms. Husain’s testimony was cor-

roborated by the testimony of the Sabharwals, friends of Dr. Hanson and

his family who accompanied them on the trip, and Issac and Sarah

Husain, and “much of the uncontradicted evidence.” /d.

5 Despite Leptougou’s statements otherwise, Flight 417 was

not full. The flight had 11 unoccupied seats, two of which were in

business class. The flight was also carrying 28 non-revenue passen-

gers, including employees and relatives of employees of Olympic and

other airlines, 17 of whom were seated in business class or in the non-

smoking section. Husain, 116 F.Supp.2d at 1126.

The amount of smoke floating around row 48 only

increased as the flight progressed, especially after a meal

was served. While Dr. Hanson ordered a meal, he did not

eat much, and shared his meal with his daughter and

another passenger. After the meal, Dr. Hanson’s breath-

ing problems worsened. He had emptied one inhaler and

asked Ms. Husain to get another one. After telling his

daughter that the smoke was bothering him, he walked to

the front of the cabin to get some fresh air.

Ms. Husain followed Dr. Hanson to an area between

rows 19 and 20 where he had stopped and was leaning

against a chair. The doctor asked for his epinepherine.

kit, which Ms. Husain retrieved and then administered a

shot. She then went to notify Dr. Umesh Sabharwal, an

allergist and family friend who was traveling with Dr.

Hanson and his family.

Dr. Sabharwal helped Dr. Hanson to the floor, admin-

istered another shot of epinepherine, and then began per-

forming CPR. Dr. Hanson’s pulse was barely detectable

and his lower airway was obstructed, though the upper

airway was not. Dr. Sabharwal continued to perform

CPR and also administered a shot of Bricanyl. Dr. Han-

son was also given oxygen during this time.® Despite the

efforts of Dr. Sabharwal and other passengers who

assisted, Dr. Hanson died.

Because of religious reasons, there was no autopsy to

determine the direct cause of death. In the district court

and here, Plaintiffs argued that Dr. Hanson died from a

severe asthma attack caused by inhaling secondhand

plied and administered the oxygen was “entirely contradictory.”

Husain, 116 F.Supp.2d at 1127 n. 7. Some witnesses testified that the

oxygen was supplied from a canister and mask belonging to Olympic,

while others testified the oxygen came from a canister and mask from

Dr. Hanson’s emergency kit.

smoke. Defendants believe that Dr. Hanson’s death was

the result of an allergic reaction to food or some other

medical problem unrelated to the smoke. The district

court determined that the smoke exposure during Flight

417 was the primary cause of Dr. Hanson’s death. We

abide by and defer to those findings.

Of major significance to the district court was the tim-

ing of the events. First, Dr. Hanson was complaining

about the secondhand smoke before the meal was served.

Second, while Dr. Hanson had some food allergies and

he did eat some food on the flight, there was no evidence

that he ate any foods to which he was allergic. Third,

experts for both parties and Dr. Sabharwal testified that

smoke was a contributing factor, though the degree to

which it contributed was disputed. Nonetheless, it is for

the district court to resolve the factual disputes and to

draw inferences from the proof.

Ill. Analysis

A. Standard of Review

A district court’s findings of fact are reviewed for

clear error. Freeman v. Allstate Life Ins. Co., 253 F.3d

533, 536 (9th Cir.2001). Clear error review is deferential

to the district court, requiring a “definite and firm con-

viction that a mistake has been made.” See Easley v.

Cromartie, 532 U.S. 234, 242, 121 S.Ct. 1452, 149

L.Ed.2d 430 (2001). Thus, if the district court’s findings

are plausible in light of the record viewed in its entirety,

the appellate court cannot reverse even if it is convinced

it would have found differently. United States v. Work-

ing, 224 F.3d 1093, 1102 (9th Cir.2000) (en banc).

A district court’s conclusions of law are reviewed de

novo. Freeman, 253 F.3d at 536. However, if the appli-

cation of the law to the facts requires an inquiry that is

10a

“essentially factual,” review is for clear error. Koirala v.

Thai Airways Int'l, Ltd., 126 F.3d 1205, 1210 (9th

Cir.1997). A district court’s determination of proximate

cause is reviewed for clear error. Tahoe-Sierra Pres.

Council, Inc. v. Tahoe Reg. Planning Agency, 216 F.3d

764, 783 (9th Cir.2000), aff'd, 535 U.S. 302, 122 S.Ct.

1465 (2002). Likewise, a district court’s finding of

“willful misconduct” under Article 25 of the Warsaw

Convention is reviewed for clear error. Koirala, 126 F.3d

at 1210.

B. Dr. Hanson’s Death Was Proximately Caused by

an “Accident” Under Article 17 of the Warsaw

Convention

(1) Article 17 “accident”

Liability for harm to international air travelers is

established by Article 17 of the Warsaw Convention.

Article 17 provides, in its entirety:

The carrier shall be liable for damage sustained in

the event of the death or wounding of a passenger or

any other bodily injury suffered by a passenger, if

the accident which caused the damage so sustained

took place on board the aircraft or in the course of

any of the operations of embarking or disembarking.

Warsaw Convention, art. 17. For a carrier to be liable

to an injured passenger, the passenger must prove an

accident caused the injury. Air France v. Saks, 470 U.S.

392, 396, 105 S.Ct. 1338, 84 L.Ed.2d 289 (1985). As

defined by the Supreme Court, an accident is “an unex-

pected or unusual event or happening that is external to

the passenger.” Id. at 405, 105 S.Ct. 1338.

lla

When determining whether an accident has occurred,

the definition of accident “should be flexibly applied

after assessment of all the circumstances surrounding a

passenger's injuries.” Jd. Where there is contradictory

evidence, “it is for the trier of fact to decide whether an

‘accident’. . . caused the passenger’s injury.” /d. If the

passenger's injury “indisputably results from the pas-

senger’s Own internal reaction to the usual, normal, and

expected operation of the aircraft,” it is not the result of

an accident as envisioned under Article 17. Jd. at 406,

105 §.Ct. 1338.

The district court found Ms. Leptourgou’s refusal to

move Dr. Hanson to another seat, despite three increas-

ingly desperate requests by Ms. Husain, was an accident

under Article 17. It did so because Ms. Leptourgou (1)

violated the recognized standard of care for flight atten-

dants on international flights by refusing to assist; (2)

violated Olympic’s policy; and (3) failed to alert the

chief cabin attendant or another flight attendant to help

Dr. Hanson find another seat. The district court found

that Ms. Husain specifically told Olympic workers,

including Ms. Leptourgou, that Dr. Hanson was “sus-

ceptible to smoke,” “allergic to smoke,” and “could not

be in any smoke.” Despite these warnings, Ms. Lep-

tourgou refused to assist Dr. Hanson. Considering the

warnings and knowledge of the doctor’s medical prob-

lems, Ms. Leptourgou’s actions constituted an unusual or

unexpected event. Ultimately, the district court con-

cluded that Ms. Leptourgou’s actions created a foresee-

able risk of injury and therefore constituted an accident

under Article 17.

Olympic argues Dr. Hanson’s death resulted from

“internal reactions to the usual, normal, and expected

operation of the aircraft” and therefore cannot have

resulted from an accident. A predicate of the argument is

12a

that the presence of ambient smoke in the cabin is van

expected and normal aspect of international air travel.’

Consequently, Olympic argues it had no duty to move

Dr. Hanson. Olympic further contends that Dr. Hanson’s

pre-existing allergies, not his exposure to ambient sec-

ondhand smoke, led to his death.

Plaintiffs in essence contend that a flight attendant

who does nothing to deal with a known risk to a pas-

senger’s health-related travel problems is negligent.

Because Ms. Leptourgou’s conduct was negligent, it fits

the definition of accident under Article 17. Plaintiffs

argue that crew negligence is external to the passenger

and is not a reasonably expected part of international

travel.

In Abramson v. Japan Airlines Co., plaintiff Stanley

Abramson suffered from a pre-existing paraesophagel

hiatal hernia for which he had been undergoing treat-

ment for six years. 739 F.2d 130, 131 (3d Cir. 1984).

Abramson had been hospitalized for the condition in

June 1981 and had been informed that he should have

elective surgery to alleviate the condition. /d.

In August 1982, Abramson’s condition began to

bother him while on a Japan Airlines flight. Id. Abram-

son had not informed Japan Airlines of his condition.

When Abramson’s wife asked that he be able to lie down

across multiple seats to apply a self-help remedy to

relieve the pain, a flight attendant told her there were no

empty seats. Jd. It was later determined through dis-

covery in the case that nine first class seats were open.

Id.

Abramson alleged that the flight attendant’s refusal to

allow him to lie down caused his condition to worsen,

ultimately leading to his hospitalization. The district

court entered summary judgment in favor of Japan Air-

lines finding that Abramson’s injuries were not the result

13a

of an accident. Jd. The Third Circuit affirmed the district

court, finding that an aggravation of an existing injury

during a routine flight, absent “proof of abnormal exter-

nal factors,” was not an unusual or unexpected event. /d.

at 133.

In Krys v. Lufthansa German Airlines, plaintiff

Leonard Krys began feeling ill during the first few hours

of a ten-hour Lufthansa German Airlines (“Lufthansa”)

flight between Miami, Florida and Frankfurt, Germany.

119 F.3d 1515, 1517 (11th Cir.1997). A doctor on board

was summoned by flight attendants to tend to Krys. The

crew did not make an unscheduled landing, instead rely-

ing on the doctor’s opinion that Krys was okay. While

the plane was flying over Amsterdam, the doctor deter-

mined that Krys had likely had a heart attack. After

landing in Germany, Krys was taken to a hospital where

doctors confirmed that he had suffered a heart attack. Jd.

Krys filed suit alleging that the crew acted negligently

when it failed to properly respond to his symptoms, and

that those negligent acts aggravated his injuries. Jd. The

Eleventh Circuit affirmed a district court judgment in

Krys’ favor, finding that the plane continuing to its

intended destination—the “aggravating event” leading to

Krys’ injury—was not an unexpected or unusual event

and therefore not an accident under Article 17. /d. at

1521-22. Ironically, the airline—in an effort to invoke

the Warsaw Convention’s liability limit—was urging the

Eleventh Circuit to find that Krys’ injuries were the

result of an accident, while Krys argued that his heart

attack was not caused by “an unexpected or unusual

event external to the passenger.” Jd. at 1518-20.

The situations in Krys and Abramson are factually dif-

ferent from Dr. Hanson’s case. In Krys, Lufthansa

employees relied upon the advice of a doctor who had

been summoned from among the passengers and made

l4a

the initial, albeit erroneous, determination that Krys had

not suffered a heart attack. Thus, Lufthansa was not

aware that there was a need for immediate action. Like-

wise, in Abramson, defendant Japan Airlines was not

informed that Abramson had a medical condition that

required such action. Nothing in Abramson’s case indi-

cates that he made multiple requests or informed the

crew of the urgency of the situation. By contrast, Ms.

Husain repeatedly informed Ms. Leptourgou and other

Olympic personnel that Dr. Hanson could not be exposed

to smoke for health reasons, and that it was necessary

that he be moved immediately. Despite her knowledge of

Dr. Hanson’s health risk, Ms. Leptourgou failed to act.

The district court found, after examining evidence

establishing industry standards and Olympic’s policies

regarding passengers with medical needs, that this fail-

ure to act was a “blatant disregard of industry standards

and airline policies.” Husain, 116 F.Supp.2d at 1134.

Ms. Leptourgou’s failure to act was more egregious in

light of the simple nature of Ms. Husain’s request, which

could easily have been satisfied without interference

with the airplane’s normal operation. Combined, these

factors bring Ms. Leptourgou’s failure to assist Dr. Han-

son within the meaning of an “accident” for Article 17

purposes. Her conduct was clearly external to Dr. Han-

son, and it was unexpected and unusual in light of indus-

try standards, Olympic policy, and the simple nature of

Dr. Hanson’s requested accommodation. The failure to

act in the face of a known, serious risk satisfies the

meaning of “accident” within Article 17 so long as rea-

sonable alternatives exist that would substantially min-

imize the risk and implementing these alternatives would

not unreasonably interfere with the normal, expected

operation of the airplane.

LSa

Because the district court’s conclusion that Ms.

Leptourgou’s failure to help Dr. Hanson constituted an

unexpected or unusual event is inextricably intertwined

with the facts in this case, it is reviewed for clear error.

See Koirala, 126 F.3d at 1210. Based on the record

before the district court, we cannot conclude that it

clearly erred.

(2) Accident as proximate cause of Dr. Hanson’s

death

For a carrier to be liable to a passenger for an injury,

the passenger must prove the accident caused the injury.

Saks, 470 U.S. at 396, 105 §.Ct. 1338. “Any injury is the

product of a chain of causes” and the passenger need

only prove “some link in the chain was an unusual or

unexpected event external to the passenger.” /d. at 406,

105 §.Ct. 1338.

Olympic argues that Dr. Hanson's death resulted from

his pre-existing food allergies, noting that the meal

served on Flight 417 included numerous food items to

which Dr. Hanson was allergic. Pointing to past inci-

dents where Dr. Hanson suffered medical problems

ostensibly after eating foods to which he was allergic,

Olympic further asserts the exact cause of Dr. Hanson’s

death is unknown because food-related anaphylaxis can-

not be ruled out and there was no evidence presented to

show asthma caused his death. Finally, Olympic asserts

there was no evidence Dr. Hanson would have lived had

Olympic found him a different seat.

Plaintiffs counter that the evidence showed second-

hand smoke around Dr. Hanson’s seat was heavy, espe-

cially after mealtime, and that there was no evidence

showing anaphylaxis caused Dr. Hanson’s death. Plain-

tiffs also assert that secondhand smoke need not be the

sole cause of Dr. Hanson’s death, as long as it is a cause.

l6a

In its findings of fact, the district court rejected the

assertion that Dr. Hanson died as a result of food-related

anaphylaxis. Rather, the district court found Dr. Han-

son’s died as a result of exposure to secondhand smoke.

The district court stated:

The Court cannot credit defendant’s suggestion that

Dr. Hanson’s breathing problems prior to the meal

were causally unrelated to his later asphyxiation.

The evidence before the Court suggests exactly the

opposite conclusion. Dr. Hanson explicitly com-

plained that smoke was affecting his breathing just

hours before his death, complained to his wife about

the level of cigarette smoke on the plane, and relied

extensively on his inhaler for support during the

hours leading to his fatal attack. To conclude, as

defendant urges, that the smoke on Flight 417 did

not trigger Dr. Hanson’s death is to ignore the chain

of events leading up to his attack.

Husain, 116 F.Supp.2d at 1128-29. Further, the district

- court considered Dr. Hanson’s previous reactions to food

and the food served on the plane, yet found Dr. Hanson

was suffering breathing difficulties before the meal on

the airplane was served and that there was not any tes-

timony that Dr. Hanson ate any of the foods he was aller-

gic to while on Flight 417.

As discussed above, it is apparent that the failure to

move Dr. Hanson caused exposure to the smoke that led

to his death. There was testimony at trial that the smoke

around Dr. Hanson was particularly thick. Olympic per-

sonnel were aware of Dr. Hanson’s condition, yet they

did nothing to assist him. Under Saks, the accident need

not be the sole cause of the injury, but it must-be a “link

in the chain.” 470 U.S. at 406, 105 S.Ct. 1338. In this

case, the exposure to smoke and failure to move Dr.

17a

Hanson is such a link. The facts as determined by the

district court, and confirmed by the record, establish that

seats were available and that Ms. Leptourgou’s failure to

help Dr. Hanson resulted in continued exposure to sec-

ond hand smoke. The district court concluded that had

Ms. Leptourgou heeded Ms. Husain’s requests for help,

Dr. Hanson would not have been exposed to second hand

smoke and would not have died. In other words, the min-

imization of the risk of smoke exposure would have pre-

vented the physiological response that caused his death.

Whether Dr. Hanson’s death was caused by a reaction

to second hand smoke resulting from Ms. Leptourgou’s

failure to assist or by a reaction to food allergies may

appear to be a close call. However, the district court, as

the trier of fact, was in the best position to determine

which of two plausible explanations was correct. The

district court’s determination here is plausible in light of

the record before the district court, thus is not clearly

erroneous, and will not be disturbed on appeal.

C. Dr. Hanson’s Death Was Proximately Caused by

Olympic’s “Willful Misconduct” Under Article

25 of the Warsaw Convention

Carrier liability for injuries caused by an accident is

usually limited to $75,000 per passenger. However, Arti-

cle 25 provides that injuries that result from the carrier’s

willful misconduct or the willful misconduct of an

employee acting within the scope of her employment are

excluded from the liability limits’.Warsaw Convention,

’ Montreal Protocol No. 4 later amended the Warsaw Con-

vention’s “willful misconduct” standard to one of “intentionally or

recklessly with knowledge that damage would probably result.” The

United States Senate ratified the Protocol in November 1998 and it

went into force in the United States on March 4, 1999. Carey v.

18a

art. 25. Article 25 does not create a separate cause of

action and therefore a plaintiff must establish both an

accident and willful misconduct to be able to recover

above the $75,000 limit. McDowell v. Cont’l Airlines, 54

F.Supp.2d 1313, 1321 (S.D.Fla. 1999). :

Willful misconduct has been defined as “the inten-

tional performance of an act with knowledge that the

_ . act will probably result in injury or damage or the

intentional performance of an act in such a manner as ”

imply reckless disregard of the probable consequences.

Koirala, 126 F.3d at 1209 (quoting Johnson v. Am. Air-

lines, Inc., 834 F.2d 721, 724 (9th Cir. 1987)). At a min-

imum, a plaintiff must prove the carrier “must have

known” of the risk to prove willful misconduct. Piamba

Cortes v. Am. Airlines, Inc., 177 F.3d 1272, 1291 (11th

Cir.1999). Determining willful misconduct is based on a

subjective standard and can be satisfied through cir-

cumstantial evidence. Koirala, 126 F.3d at 1211.

United Airlines, 255 F.3d 1044, 1047 n. 11 (9th Cir.200]) (citations

and internal quotations omitted).

8 This Court has also analyzed Article 25’s “willful miscon-

duct” standard under California law. See Dazo v. Globe Sec. Servs.,

295 F.3d 934, 940-41 (9th Cir.2002) (cargo case). Under California

law. willful misconduct is distinguishable from negligence:

Unlike negligence, which implies a failure to use ordinary

care, and even gross negligence, which connotes such a lack

of care as may be presumed to indicate a passive and indif-

ferent attitude toward results, willful misconduct is not

marked by a mere absence of care. Rather, it involves a more

positive intent actually to harm another or to do an act with

a positive, active, and absolute disregard of its consequences.

Id. at 941 (citing Calvillo-Silva v. Home Grocery, 19 Cal.4th 714, 80

Cal.Rptr.2d 506, 968 P.2d 65, 76 (1998) (citations and internal quo-

tations omitted)). Ms. Leptourgou’s failure to act constituted willful

misconduct under either of these standards.

19a

In Koirala, a plane crashed into a mountain after the

crew flew in the wrong direction for six minutes while

attempting to land in Kathmandu. /d. at 1208. Thai Air-

ways argued that the evidence showed the crew was

stressed because of poor weather and difficult landing

conditions and that the evidence did not show the crew

consciously failed to look at their instruments. Jd. at

1210. This Court found the district court did not clearly

err in finding willful misconduct given the crew’s fail-

ure to realize the plane was flying in the wrong direction

for six minutes. Jd. In reaching its conclusion, this Court

paid particular attention to expert testimony offered by

the plaintiffs to establish the standard of care. /d. at

1211.

Like the crew in Koirala, Ms. Leptourgou’s failure to

take action, either by moving Dr. Hanson or by notifying

the chief cabin attendant of Ms. Husain’s request to have

her husband moved, was willful misconduct. The district

court concluded “Ms. Leptourgou must have known that

the cabin was not full, that Dr. Hanson had a medical

problem and a special susceptibility to smoke, and that

her failure to move him would aggravate his condition

and cause him probable injury.” Husain, 116 F.Supp.2d

at 1139. This conclusion is supported by the record in

this case, including the highly credible testimony of Ms.

Husain. Additionally, because Ms. Leptourgou did not

testify in person or by deposition, Ms. Husain’s version

of events was uncontradicted.

Of equal import was testimony by Plaintiffs’ expert

that Ms. Leptourgou was aware of the industry standard

of care and Olympic policy regarding passengers

requesting seat transfers for medical reasons. This estab-

lished that Ms. Leptourgou should have assisted Dr.

Hanson in finding a new seat, especially since there were

available seats further away from the smoking section.

20a

Ms. Leptourgou’s duty to act was compounded by the

urgency of Ms. Husain’s requests.

Olympic argues that Plaintiffs did not show Ms. Lep-

tourgou engaged in misconduct or that she was subjec-

tively aware of the risk of harm to Dr. Hanson. In

Olympic’s view, all of the seats in Ms. Leptourgou’s sec-

tion were full so she was not aware the flight was not

totally full, and she was not aware of the risk of harm to

Dr. Hanson because he did not ask to be moved, nor did

he or Ms. Husain seek a different seat when Ms. Lep-

tourgou told them they could. Even so, she still did not

advise the crew chief of the problem.

However, as the district court determined, Ms. Husain

“was not merely a typical passenger complaining about

an inconvenient seat assignment,” because her repeated

requests became increasingly “emphatic and desperate.”

Id. Based on Ms. Husain’s testimony, the district court

found Ms. Leptourgou could not have “failed to recog-

nize that Dr. Hanson’s problem was a medical one and

that sitting near the smoking section was likely to cause

him injury.” Jd. Despite this, Ms. Leptourgou “deliber-

ately closed her eyes to the probable consequences of

her acts.” Id.

The district court, as the trier of fact in this matter,

was in a superior position to appraise and weigh the evi-

dence, and its determination regarding the credibility of

witnesses is entitled to special deference. See Anderson

v. City of Bessemer, 470 U.S. 564, 573-75, 105 S.Ct.

1504, 84 L.Ed.2d 518 (1985); Allen v. Iranon, 283 F.3d

1070, 1078 n. 8 (9th Cir.2002). The district court’s deci-

sion was based on the testimony of Ms. Husain, Plain-

tiffs’ expert, and Olympic’s own employees, and is

well-grounded in the record. While establishment of

willful misconduct requires a party to satisfy a high bur-

den, the evidence before the district court in this case is

2la

sufficient to meet that burden. The facts in the record

establish that Ms. Leptourgou was aware that Dr. Hanson

was in a desperate situation that required immediate

assistance, yet despite this knowledge and increasingly

emphatic pleas from Ms. Husain, Ms. Leptourgou

ignored Olympic’s policy and industry standards and

refused to assist Dr. Hanson. This amounts to a derelic-

tion of duty that is not only unusual and unexpected on

an international flight, but willful.

The district court’s conclusion that Ms. Leptourgou’s

actions were willful misconduct cannot be disturbed on

review unless we are left with a “definite and firm con-

viction that a mistake has been made.” Sec. Farms v

Int'l Bhd. of Teamsters, 124 F3d 999, 1014 (9th

Cir.1997). Based on facts in the record and the exhaus-

tive findings by the district court, we cannot conclude

that a mistake has been made.

IV. Conclusion

We decide that the district court's findings and con-

clusions are well-grounded in the record. Olympic’s

argument asks this Court to substitute its judgment and

second guess the district court. This we cannot do.

Olympic failed to meet its burden of showing that the

district court’s findings are clearly erroneous and that

the district court erred in its application of the law.

Therefore, we affirm the judgmce at of the district court.

AFFIRMED.

22a

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

No. C 99-1400 CRB

RUBINA HUSAIN, individually and as personal repre-

sentative of the estate of ABID M. HANSON, M.D.;

HANNAH HUSAIN; SARAH HUSAIN and ISAAC HUSAIN,

minors, by and through their Guardian ad Litem, RUBINA

HUSAIN,

Plaintiffs,

OLYMPICA AIRWAYS,

Defendant.

JUDGMENT

Pursuant to the Court’s Amended Findings of Fact and

Conclusions of Law dated October 2, 2000 and its Sup-

plemental Findings of Fact and Conclusions of Law

dated November 28, 2000, it is hereby ordered that Judg-

ment be entered in favor of the plaintiffs and against the

defendant in the amount of $1,400,000.00.

IT 1s SO ORDERED.

Dated: November 28, 2000

CHARLES R. BREYER __

CHARLES R. BREYER

United States District Judge

23a

UNITED STATES DISTRICT COURT

N.D. CALIFORNIA

No. C 99-1400 CRB

November 28, 2000

RUBINA HUSAIN, individually and as personal repre-

sentative of the estate of Abid M. Hanson, M.D.; Hannah

Husain; Sarah Husain and Isaac Husain, minors, by and

through their Guardian ad Litem, Rubina Husain,

Plaintiffs,

OLYMPIC AIRWAYS,

Defendant.

SUPPLEMENTAL FINDINGS OF FACT

AND CONCLUSIONS OF LAW

BREYER, J.

Now before the Court is the plaintiffs’ motion for

modification and/or clarification of this Court’s Findings

of Fact and Conclusions of Law issued on August 28,

2000 (“Findings”). The plaintiffs filed their motion on

September 5, 2000. On October 2, 2000, the Court

issued an Amended Findings of Fact and Conclusions of

Law (“Amended Findings”), which was nearly identical

24a

to the Findings with the exception of several minor tech-

nical corrections involving the numbering of section

headings. Thus, the Court will treat the plaintiffs’ motion

as a motion to modify and/or clarify the Amended Find-

ings. After seeking guidance from the parties regarding

several factual and legal issues, the Court now issues the

following Supplemental Findings of Fact and Conclu-

sions of Law in response to the plaintiffs’ motion.

BACKGROUND

The Court need not repeat the extensive facts outlined

in its Amended Findings, but a brief review of the case

is helpful. This suit arose from the death of Dr. Abid M.

Hanson on an international passenger flight in January

1998. Dr. Hanson suffered from asthma, and he died after

inhaling a significant amount of second-hand smoke. He

was accompanied on the flight by his then 41-year-old

wife Rubina Husain and their three children Hannah,

Sarah, and Isaac, then aged 10, 17, and 19, respectively.

After a bench trial on May 30-June 1, 2000, the Court

issued its Findings on August 28, 2000, and the

Amended Findings on October 2, 2000. The Court found

that Olympic Airways was liable under the Warsaw Con-

vention since Dr. Hanson’s death was an “accident” as

defined by the Convention. It also held that the defen-

dant’s liability was not limited to $75,000 since the

defendant had engaged in willful misconduct. In addi-

tion, the Court determined that Dr. Hanson was com-

paratively liable for his own death at a rate of fifty

percent.

The Court then observed that the evidence supported

“an award of damages commensurate with the pecuniary

loss to Dr. Hanson’s surviving family.” Amended Find-

ings at 36. However, it noted that “[t}he parties have not

25a

established in their briefs or their arguments to the Court

that damages in excess of that amount are legally appro-

priate in this case.” /d. After calculating the pecuniary

loss to the plaintiffs at $1,400,000, the Court discounted

that figure by fifty percent to account for Dr. Hanson’s

comparative fault and awarded the plaintiffs damages in

the amount of $700,000 for Dr. Hanson's wrongful

death.

DISCUSSION

The plaintiffs brought their motion seeking clarifica-

tion of this Court's statement that “[t}he parties have not

established in their briefs or their arguments to the Court

that damages in excess of that amount are legally appro-

priate in this case.” The plaintiffs argue that California

law governs the damages this Court may award, and that

California law permits a court to award non-pecuniary

damages. Moreover, they assert that the evidence they

presented at trial supports an award for the non-eco-

nomic losses suffered by the Husains.

I. CHOICE OF LAW

The plaintiffs are correct that California law governs

this suit. The parties agree that Dr. Hanson died while

the Olympic Airways plane was flying over Germany, so

the Death on the High Seas Act does not apply. Accord-

ingly, the Court must instead resort to California choice-

of-law rules. See Harris v. Polskie Linie Lotnicze, 820

F.2d 1000, 1002 (9th Cir. 1987) (noting that the Warsaw

Convention does not specify which party’s internal law

is the proper law, but that the problem “is easily resolved

in the routine Warsaw Convention case, in which a fed-

eral court has diversity jurisdiction”); id. (“For many

years it has been the rule that a federal court sitting in

26a

diversity applies the conflict-of-law rules of the state in

which it sits.”). } |

Under California’s choice-of-law rules, “California

will decline to apply its own law to a case brought in

California only if it is shown that another state has a

greater interest in having its law applied.” In re Aircrash

in Bali, Indonesia on Apr. 22, 1974, 684 F.2d 1301, 1307

(9th Cir.1982) (observing that “California has adopted

the ‘governmental interest’ approach to questions of

conflicts of laws” and citing Hurtado v. Superior Court,

11 Cal .3d 574 (1974)). If the parties do not suggest any

other state that would have a greater interest in having

its law applied, then a district court sitting in California

properly employs California law in resolving the dis-

pute. See In re Aircrash, 684 F.2d at 1307 (applying Cal-

ifornia law to an action involving an airplane crash

under the Warsaw Convention).

Here, California has a greater interest than any other

state in applying its law to protect and compensate Cal-

ifornians who are the victims of conduct leading to -

wrongful deaths. These parties never raised 4 choice of

law issue, and they agreed throughout the litigation—

and again when this Court asked them for guidance after

issuing its Amended Findings—that California sub-

stantive law governs the dispute. Thus, the Court will

apply California law regarding the recovery of non-eco-

nomic losses in a wrongful death action.

Under California damages law, non-pecuniary losses

may be awarded. Survivors in a wrongful death claim are

entitled to both economic and non-economic losses. See

BAJI No. 14.50 (8th ed.1994) (instructing that a jury

may award “economic and non-economic” damages),

Krouse v. Graham, 19 Cal.3d 59, 67 (1977) (establishing

that a plaintiff may recover for non-pecuniary damages

in an action for wrongful death); id. (noting that “for the

27a

past century California courts have uniformly allowed

wrongful death recovery for loss of the society, comfort,

care and protection afforded by the decedent”).

The defendant does not dispute that California law

applies to this suit, nor does it contend that California

law forbids recovery for non-pecuniary losses. Instead,

the defendant asserts that the Court’s statement that the

parties had not established that damages in excess of the

plaintiffs’ pecuniary loss were legally appropriate meant

that the Court had concluded that non-economic dam-

ages were not warranted, or at least that its damage

award included both pecuniary and non-pecuniary

losses.

The defendant’s interpretation of the Amended Find-

ings is in error. This Court did not mean to imply that

the plaintiffs had not suffered non-economic losses, or

that its award incorporated both pecuniary and non-pecu-

niary damages. Instead, the Court meant simply what it

said: that the parties had not at that time established the

legal framework under which this Court could determine

whether an award of non-economic loss was appropriate.

By agreeing that Dr. Hanson died over Germany and that

therefore California substantive law applies (as opposed

to the Death on the High Seas Act), the parties have now

established the proper legal basis on which this Court

may decide whether and to what extent to award dam-

ages for the plaintiffs’ non-pecuniary loss.

Il. THE AWARD OF NON-ECONOMIC DAMAGES

California’s model jury instructions direct a jury to

award “reasonable compensation for the loss of love,

companionship, comfort, affection, society, solace or

moral support, any loss of the enjoyment of sexual rela-

tions, and any loss of the physical assistance to a spouse

in the operation or maintenance of the home.” See BAJI

28a

No. 14.50 (unnecessary brackets omitted). Moreover, the

instructions indicate that the fact-finder is not to con-

sider any pain or suffering of the decedent, any grief or

sorrow of the heirs, or the poverty or wealth of any heir.

See id. The Court must diminish any recovery in pro-

portion to Dr. Hanson’s comparative negligence. See id.

(Use Note (citing 6 Witkin, Summary of Calif. Law (9th

ed.), Torts, § 1214). |

In responding to this Court’s request for guidance

regarding an appropriate amount for non-economic dam-

ages, the parties have (perhaps not surprisingly) pro-

duced quite disparate figures. The defendant asserts that

Isaac and Sarah Husain will be financially independent

in the near future and did not suffer “any exceptional

non-economic loss.” Defendant’s Letter Brief, Nov. 17,

2000, at 1. The defendant also contends that the evi-

dence in the record does not support an award of non-

economic damages to Hannah Husain. See id. The

defendant cites a single case, Huey v. Carteron, 1997

WL 465515 (T.D. Cal.Jury), in which a 45-year-old busi-

nessman was survived by his 48-year-old widow and his

two sons, aged 18 and 17. In Huey, which involved a

medical malpractice claim, the jury awarded only

$64,000 in special damages. As a result, the defendant

contends, the plaintiffs are entitled to non-economic

damages in the range of $75,000 to $100,000. |

The plaintiffs argue that this Court’s non-economic

award should be several times its award for economic

damages. In addition to outlining in great detail the evi-

dence indicating that the plaintiffs suffered non-eco-

nomic losses, the plaintiffs have also cited studies

regarding the importance of paternal involvement in a

child’s development. See Plaintiffs’ Letter Brief, Nov.

21, 2000, at 2-5 (citing portions of the trial transcript to

demonstrate the plaintiffs’ non-economic losses); id. at

29a

4 (citing studies regarding a father’s role in a child’s

life). The plaintiffs have also identified cases in which

the awards for non-economic losses ranged from

$3,750,000 to $7,500,000. See id. at 9 (citing six cases).

The plaintiffs assert that awards for non-economic dam-

ages are typically several times the corresponding

awards for economic damages because “non-economic

loss is far more devastating to surviving family members

because it is a loss that can never be replaced.” /d. at 5.

In the plaintiffs’ view, $4,000,000 to $6,000,000 is a

more appropriate figure to compensate the plaintiffs.

The plaintiffs did present evidence regarding the non-

economic loss they suffered as a result of Dr. Hanson’s

death. Rubina Husain, married to Dr. Hanson for twenty

years at the time of his death, described in her testimony

the activities the family used to do together for recre-

ation. See Transcript of Bench Trial (“Transcript”), Vol. 1

(May 30, 2000), at 69-70 (testimony of Rubina Husain).

She also indicated that Dr. Hanson was active around the

house and helped her with chores such as gardening and

cleaning. See id. at 73. Isaac Husain testified that Dr.

Hanson “was a very caring father and a very loving

father.” Transcript at 142 (testimony of Isaac Husain)

(observing that one of Dr. Hanson's “principal avoca-

tions and pleasures in life is [sic] his role as a father”).

Isaac Husain also recounted the interest that Dr. Hanson

took in the Husain children’s lives, and the time they all

spent together talking, taking trips, and attending ath-

letic events. See id. According to Isaac Husain, Dr. Han-

son and Rubina Husain had a very close relationship and

worked together in raising the three Husain children. See

id. at 142-43. Finally, in her testimony, Sarah Husain

depicted a typical day in her family’s life and com-

mented on the importance of her father to the family. See

Transcript, Vol. II (May 31, 2000), at 336-337 (testi-

30a

mony of Sarah Husain). She also discussed the chores

that her father performed around the house, his atten-

dance at the children’s activities, the assistance he pro-

vided to her in applying for college, and the closeness of

his relationship with the Husain children. See id. at 337-

43.

It is, of course, difficult to attach a specific monetary

figure to the value of a father to his wife and three chil-

dren. In addition to the parties’ letter briefs, this Court

also performed its own review of verdicts from other

wrongful death cases in California for guidance. Many

cases awarded well over one million dollars in non-

economic damages for the surviving spouse and minor

children of a decedent. See, e.g., Hoskins v. Vintage

Petroleum Inc., 1998 WL 1108100 (T.D. Cal. Jury)

(awarding after a bench trial $2 million in non-economic

damages for the wife and two minor children of a dece-

dent killed by toxic gases); Thomas v. L.A.P.D., 1995

WL 766087 (T.D. Cal.Jury) (awarding $1.5 million in

non-economic damages for the wife and two minor chil-

dren of a shooting victim); Passoff v. Robinson Heli-

copter Co., 1994 WL 846769 (T.D. Cal.Jury) (awarding

$3 million in non-economic damages for the wife and

two minor children of a decedent killed in a helicopter

crash).

A few cases awarded less than one million dollars for

non-economic damages to a surviving spouse and minor

children. See, e.g., Balanay v. Knoll, 1999 WL 504676

(T.D. Cal.Jury) (awarding $250,000 in non-economic

damages to the husband and three children of a dece-

dent); Thompson v. Asbestos Corp. Ltd., 1998 WL 389414

(T.D. Cal. Jury) (awarding between $400,000 and $800,000

in non-economic damages to the surviving spouses and

children of asbestos victims)-

3la

| After analyzing all of these verdicts and carefully con-

sidering the importance of Dr. Hanson to his family, the

Court has concluded that the plaintiffs should receive ar

award of non-economic damages equal to this Court’s

earlier award for economic damages. Dr. Hanson was

actively involved in his children’s lives and provided

comfort, Support, and physical assistance to his wife, but

he enjoyed less-than-perfect health. The plaintiffs are

undoubtedly entitled to more than the $100,000 suc-

— by — defendant, and awarding adaunente

amages equal to the family’ :

He ag — mily’s economic damages seems

As a result, the Court concludes that the plaintiffs are

entitled to non-economic damages of $1,400,000. The

Court then must reduce that figure by fifty percent to

account for Dr. Hanson’s contributory negligence, fora

total additional award of $700,000. Thus. the Court's

total award, including its earlier award for the plaintiffs’

pecuniary loss, is $1,4007000.

CONCLUSION

For the foregoing reasons, the Court :

, g re ; supplements its

earlier Amended Findings by awarding the plaintiffs an

additional $700,000 in non-pecuniary damages.

IT is SO ORDERED.

32a

UNITED STATES DISTRICT COURT

N.D. CALIFORNIA

No. C 99-1400 CRB

October 3, 2000

indivi ] repre-

RUBINA HUSAIN, individually and as persons

sentative of the estate of Abid M. Hanson, M.D.; Hannah

Husain; Sarah Husain and Isaac Husain, minors, by and

through their Guardian ad Litem, Rubina Husain,

Plaintiffs,

—_—Yy—

OLYMPIC AIRWAYS,

Defendant.

GERALD C. STERNS, Sterns & Walker, Oakland, CA,

for Plaintiffs.

STEPHEN J. FEARON JR., ROBERT J. SAVILLE, Condon

& Forsyth LLP, Los Angeles, CA, JOHN MAGGIO, Con-

don & Forsyth, New York City, for Defendant.

33a

AMENDED FINDINGS OF FACT AND

CONCLUSIONS OF LAW

BREYER, District Judge.

On an international passenger flight in January 1998,

Dr. Abid M. Hanson, a non-smoker who suffered from

asthma, inhaled a significant amount of second-hand

smoke and died in the company of his wife and three

children. Dr. Hanson was not seated in the “smoking”

section of the airplane on which he died, but in a seat

three rows ahead. Considerable ambient smoke was pre-

sent at this location. Had Olympic Airways’ flight crew

responded appropriately to the repeated requests to move

Dr. Hanson from this area, he might be alive today.

Plaintiffs Rubina, Hannah, Sarah and Isaac Husain

bring this wrongful death action under the liability pro-

visions of the Warsaw Convention. The parties agree that

the Warsaw Convention presents plaintiffs’ exclusive

remedy. Therefore, to determine liability in this case, the

Court must decide whether plaintiffs’ claim satisfies the

requirements of that treaty. Specifically, the Court must

decide: (1) whether an “accident” occurred aboard

Olympic Airways Flight 417 on January 4, 1998; (2)

whether that accident caused the death of Abid Hanson;

(3) whether the crew’s in-flight actions constituted “will-

ful misconduct”; and (4) to what extent, if any, Dr. Han-

son's own negligence contributed to his death.

Plaintiffs filed this suit in state court on December 24,

1998, and defendant removed the case to this Court on

March 23, 1999. The Court heard testimony and received

evidence in this case on May 30, May 31, and June 1,

2000.' After receiving the parties’ post-trial briefs, the

The Court's subject matter jurisdiction over Olympic Air-

ways derives from the Foreign Sovereign Immunities Act, which pro-

vides only for non-jury civil actions. 28 U.S.C.A. § 1330(a), 1605.

34a

Court heard final arguments on July 20, 2000. Supple-

mental letter briefs were submitted shortly thereafter.

This memorandum and order shall constitute the Court's

findings of fact and conclusions of law in this matter.

FACTUAL BACKGROUND

I. Dr. Hanson's Medical History

Dr. Abid Hanson was 52 years old in January 1998.

For more than two decades prior to his death, Dr. Han-

son suffered from asthma. Although Dr. Hanson did not

receive regular treatment for his condition, he carried a

Proventil/Albutero! inhaler on his person most of the

time to assist his breathing. According to the testimony

of Dr. Hanson's wife, Ms. Rubina Husain, Dr. Hanson

used his inhaler more and more frequently as he aged.

Perhaps as a result of his asthmatic condition, Dr. Han-

son was particularly sensitive to second-hand cigarette

smoke, and he generally tried to avoid smoke-filled

areas. Prior to January 4, 1998, Dr. Hanson had never

been affected by cigarette smoke during domestic or

international air travel.

In addition to his asthma, Dr. Hanson suffered from

multiple food allergies. The evidence is somewhat

unclear regarding the extent of Dr. Hanson's allergies, or

even the particular foods to which he was allergic. A

blood test prior to his death indicated that Dr. Hanson

was allergic to grapes, yeast and tomatoes. However, Dr.

Hanson frequently ate tomato-based dishes at home

without incident.

In the two years preceding Dr. Hanson's death, he suf-

fered two notable medical emergencies of unknown ori-

gin. In each instance, the incident may have been

precipitated by Dr. Hanson’s asthma or by an allergic

reaction to certain foods. The most serious incident

35a

occurred during a family vacation in Las Vegas in

December 1996. One evening, Dr. Hanson and his wife

spent approximately ten minutes in a smoky restaurant,

Shared some cheese pizza and a piece of quiche, and

returned to their hotel room. Shortly thereafter, Dr. Han-

son began to have trouble breathing. As his breathing

difficulties worsened, Dr. Hanson began to turn blue.

Ms. Husain performed CPR until the paramedics arrived,

at which point Dr. Hanson was administered a shot of

epinepherine, a form of adrenaline. After resuscitating

Dr. Hanson, the paramedics moved him to the hospital,

where he was held overnight. The next morning, Dr.

Hanson checked himself out of the hospital against med-

ical advice.

The precise cause of Dr. Hanson's near-fatal experi-

ence in Las Vegas is not entirely clear. Although the dry

Nevada air or the smoke of the restaurant may have trig-

gered the attack, it was more likely caused by a reaction

to certain foods. After reviewing Dr. Hanson's medical

records, Dr. Stephen Wasserman, defendant's expert wit-

ness, described Dr. Hanson's troubles in Las Vegas as

anaphylaxis caused by a severe allergic reaction to food.

Plaintiffs’ expert, Dr. Jeffrey Golden, agreed, charac-

terizing the episode as “bona fide food-related anaphy-

laxis.”

After the incident in Las Vegas, Dr. Hanson purchased

an emergency Carrying case containing epinepherine to

treat any future attacks. Shortly thereafter, Dr. Hanson

experienced a second medical crisis in the summer of

1997, at the home of a friend in Alameda, California. On

the evening in question, Dr. Hanson had eaten dinner and

then taken a walk outside. Upon Dr. Hanson’s return,

Ms. Husain noticed that he was having trouble breathing.

Fearing that her husband was suffering an asthma attack,

Ms. Husain called the paramedics. When they arrived,

36a

the paramedics administered oxygen and observed Dr.

Hanson for about ten minutes, but did not take him to the

hospital. No epinepherine was administered on that

on. |

The cause of Dr. Hanson’s breathing problems in

Alameda are unknown. Although defendant posits that

this second incident was food-related, there is no evi-

dence to support that hypothesis. Equally likely is that

the cold dry air which Dr. Hanson breathed during his

walk triggered an asthmatic reaction. In either case, the

incident in Alameda reveals little about the cause of Dr.

Hanson’s death aboard Flight 417 six months later.

II. Dr. Hanson's Death

In late 1997, Dr. Hanson, his wife, Rubina Husain, and

their three children (“the Husains”) traveled from San

Francisco to Athens and Cairo for a family vacation.

They were accompanied on their trip by family friends,

Dr. Umesh Sabharwal, his wife and their children.

Prior to arriving at the airport, the Husains were

unaware that Olympic Airways (“Olympic”) permitted

passengers to smoke cigarettes on international flights.

Upon learning for the first time at the New York airport

that their flight would include a smoking section, the

Husains requested non-smoking seats. On the 12-hour

flight from New York to Athens, the Husains were seated

toward the middle or front of the aircraft. On the con-

necting flight to Cairo, the Husains were again seated

away from the smoking section of the cabin. No ambient

smoke was present at either location. Dr. Hanson expe-

rienced no problems breathing on either flight.

The Husain family spent 12 days in Egypt, and

embarked on their return trip to the United States on Jan-

uary 4, 1998. According to the testimony of Ms. Husain,

the family arrived at the airport early on the day of the

37a

return flight because they wanted to ensure that they

would be seated in the non-smoking section. After

receiving the family’s seat assignments, Ms. Husain

returned briefly to the counter and showed the check-in

agent a letter signed by Dr. Hanson's brother, also a

medical doctor, explaining that Dr. Hanson had a history

of asthma. After showing the letter to the agent, Ms.

Husain asked the agent to ensure that the family would

be seated in the non-smoking section of the plane.

The first leg of the family’s return trip was uneventful,

but Dr. Hanson began to experience some breathing trou-

ble during a layover in the Athens airport. The layover in

Athens lasted approximately three to four hours. and the

large room in which the family was seated was filled

with cigarette smoke. During the delay, Dr. Hanson used

his inhaler more frequently than usual. Because he was

bothered by the pervasive smoke, Dr. Hanson attempted

to move into the restricted but slightly less smoky area

of the first class lounge, but airport officials asked that

he move back to the main room.

After the delay, the Husains and the Sabharwals

boarded Olympic Airways Flight 417. It was at this time

that the Husains first realized that they had been

assigned seats at the rear of the airplane cabin, only a

few rows in front of the smoking section. The airplane,

a Boeing 747, contained a total of 426 passenger seats in

56 rows. Rows one through 13 were designated as busi-

ness class seats, and rows 14 through 56 were designated

as economy class seats. In the economy class, rows 14

through 50 were designated as non-smoking seats. The

economy class smoking section began at row 51 and

extended to the rear of the cabin. The Husains were

seated in row 48 in seats A through E. The Sabharwals

were seated nearby. Dr. Husain was seated in seat 48E.

just three rows in front of the smoking section. No

38a

partition separated the smoking from the non-smoking

section.

When the Husains arrived at their seats, Ms. Husain

noticed Maria Leptourgou, an Olympic flight attendant,

circulating in the cabin and advising passengers to sit

down for takeoff.2 Ms. Husain approached Ms. Lep-

tourgou and told her that her husband could not sit in a

smoking area. Ms. Husain said to Ms. Leptourgou, “You

have to move him.” The flight attendant paid little atten-

tion to Ms. Husain’s request, telling her to “have a seat.”

Once the plane was fully boarded, but prior to takeoff,

Ms. Husain again approached Ms. Leptourgou and asked

the flight attendant to move her husband now that all the

passengers on the plane were seated. This time Ms.

Husain explained that her husband was “allergic to

smoke.” At trial, Ms. Husain described her pre-takeoff

requests to the flight attendant as “adamant.” Ms. Lep-

tourgou replied that she could not transfer Dr. Hanson to

another seat because the plane was “totally full.” The

flight attendant also told Ms. Husain that she was too

busy at the moment to assist the Husains.’

The Husains remained in their assigned seats during

takeoff, and the first several minutes of the flight passed

2 Because Ms. Leptourgou was unavailable to testify at trial

and was not deposed for the purpose of this case, the Court never

heard her recollection of the events leading up to Dr. Hanson's death.

In making its factual findings the conversations between Ms. Husain

and the flight attendant, the Court must rely primarily on the testi-

mony of Ms. Husain. The Court finds Ms. Husain’s testimony to be

quite credible, and notes that her recollection of the events on Flight

417 was largely corroborated by the testimony of Dr. Sabharwal and

her children, Isaac and Sarah Husain, as well as much of the uncon-

tradicted evidence.

3 _ Defendant objects to Ms. Husain’s testimony regarding this

conversation, arguing that the statements attributed to Ms. Leptour-

gou are inadmissible hearsay. The Court permitted the testimony at

39a

without incident. Shortly after takeoff, however, the cap-

tain turned off the “no smoking” signs, and passengers in

the rows behind the Husains began to light cigarettes.

From this point on, according to the testimony of Sarah

Husain, passengers in rows 51 through 56 were smoking

continuously. In addition to those seated in rows 51

through 56, a number of passengers from other rows

stood temporarily in the aisles behind the Husains,

smoking and socializing. As a result, smoke was both

pervasive and constant.

As soon as the smoking began, the Husains were sur-

rounded by ambient smoke which had floated forward

into their row. When the smoke began to linger in row

48, Dr. Hanson gestured to his wife and complained that

the smoke was “like a chimney.” Ms. Husain then stood

up and contacted Ms. Leptourgou for a third time. This

time, Ms. Husain told the flight attendant, “You have to

move my husband from here.” Again, Ms. Leptourgou

curtly refused, stating that the plane was full. Ms.

Leptourgou indicated to Ms. Husain that Dr. Hanson

could switch seats with another passenger, but that, in

order to do so, Ms. Husain would have to walk through

the cabin and ask other passengers herself. She could not

enlist the assistance of the flight crew in changing her

husband’s seat. Ms. Husain, becoming more desperate

trial, subject to later consideration of the hearsay question. After due

consideration, the Court overrules defendant's objection. Ms. Lep-

tourgou's statements were not offered for their truth, and are there-

fore not hearsay. See Fed.R.Evid. 801. Indeed, plaintiff charges, and

the Court finds, that Ms. Leptourgou’s statements were in fact untrue.

The statements establish not that Flight 417 was full or that the crew

was unable to move Dr. Hanson, but that Ms. Leptourgou failed to

respond appropriately to Ms. Husain’s concerns and entreaties. More-

over, even if the statements were admitted only for their truth, they

would still likely be admissible as vicarious admissions of a party-

opponent. See Fed.R. Evid. 801(d)(2).

40a

and more adamant, told the flight attendant that her hus-

band had to move, even if the only available seat were in

the cockpit or the first class area of the cabin. The flight

attendant, however, was equally resolute. She offered no

assistance. Finally, Ms. Husain seeing no hope for

accommodation, returned to her seat.

Unbeknownst to the Husains, Flight 417 was actually

not full. In fact, the flight contained eleven empty pas-

senger seats.* The cabin had a capacity of 426 seats, 44

of which were located in business class and 382 of

which were located in economy class. Four of these

seats, located in a row immediately behind the smoking

section, were designated as “crew rest” seats. Only 411

passengers traveled on Flight 417 on January 4. There-

fore, the flight had eleven unoccupied seats, not includ-

ing those designated for crew rest. Two of those empty

seats were located in the business class section of the

cabin.

In addition to the unoccupied seats, Flight 417 carried

28 “non-revenue passengers.” Non-revenue passengers

include employees and relatives of employees of

Olympic Airways and other airlines. Of these 28 pas-

sengers, eleven were seated in the cabin’s smoking sec-

tions. Of the remaining 17 non-revenue passengers, two

were seated in rows one and two in business class and 15

were seated in rows 15 through 36 in economy class.

* There was some confusion at trial concerning the number of

empty seats and how many of them were located in the non-smoking

section of the plane. The Court's finding that there were eleven empty

seats on the flight is supported by the flight's passenger manifest, the

testimony of Captain Karayannis, and Olympic's admissions during

discovery. Unfortunately, the evidence did not esteblish the precise

location of these seats on the plane or how many of them were

located in the non-smoking section.

4la

As the flight progressed, ambient smoke continued to

circulate in the area of row 48. Approximately two hours

into the flight, the crew served a meal. The evidence

before the Court establishes that Dr. Hanson ordered a

meal and that he ate some portion of it. He also shared

some of his food with his daughter, Sarak and with a

woman seated to his right. According to Sarah, Dr. Han-

son “wasn't really eating that much” of his meal.

Immediately after the meal service, smoking increased

noticeably in the rows behind the Husains. Around this

time, Dr. Hanson became unusually quiet. At some point

shortly after the meal, Dr. Hanson asked his wife for a

new inhaler, indicating that the one he had been using

had emptied. Ms. Husain retrieved a full inhaler from the

overhead bin. Dr. Hanson turned around sever7! times to

look at the smoke in the rows behind him. He then told

Sarah that the smoke was bothering his allergies, and

decided to move toward the front of the cabin to breathe

fresher air.

Sarah notified her mother of Dr. Hanson's discomfort,

and Ms. Husain followed him to the front of the aircraft.

Dr. Hanson walked forward a number of rows, stopping

in the galley area between rows 19 and 20, well into the

non-smoking area. When Ms. Husain reached him, he

was leaning against a chair near the galley area. Dr. Han-

son gestured to Ms. Husain to get the epinepherine that

he carried in his emergency kit, which Ms. Husain had

stored in a carry-on bag. Ms. Husain rushed to the rear

of the plane to retrieve the epinepherine, then returned

to the galley area and administered a shot to her husband

in a pre-measured syringe.° She then ran to the rear of

the cabin to wake Dr. Sabharwal.

* The parties agree that the epinepherine administered to Dr.

Hanson on Flight 417 was fresh and had been properly maintained.

42a

Within seconds, Dr. Sabharwal, who, by chance, was

an allergy specialist, arrived at the front of the plane to

assist. Noticing that Dr. Hanson was in respiratory dis-

tress, Dr. Sabharwal pulled him onto the floor, gave him

another shot of epinepherine (.20 ccs), and began to

administer CPR.° At this point, Dr. Hanson’s pulse was

barely palpable. Dr. Sabharwal noticed that, while Dr.

Hanson’s lower airways were obstructed, his upper air-

way was not. For this reason, he was able to push some

air into Dr. Hanson’s lungs during the administration of

CPR. During the treatment, Dr. Sabharwal also gave Dr.

Hanson a shot of Bricanyl, which had been retrieved

from the Husains’ emergency kit.

At some point during this period, Ms. Husain

requested that one of the flight attendants provide an

oxygen canister and mask for her husband. According to

Ms. Husain’s testimony, two flight attendants attempted

to open the oxygen canister, but were unable to do so.’

Ms. Husain summoned Sarah, who was walking toward

the front of the aircraft, and asked her to retrieve Dr.

Hanson's oxygen canister with its nasal canula from the

famity’s emergency kit. Sarah relayed this message to

® Although it is not entirely clear exactly how many shots of

epinepherine Dr. Hanson received during the trauma that preceded his

death, the testimony of Dr. Sabharwal, Ms. Husain, Isaac Husain and

Sarah Husain confirm that at least two shots were administered, the

first by Ms. Husain and the second by Dr. Sabharwal.

? ‘The testimony regarding oxygen administration was entirely

contradictory. Rubina and Isaac Husain both testified that the flight

attendants were arranging an oxygen canister, but that they were

unable to administer oxygen to Dr. Hanson. Ms. Husain, Dr. Sab-

harwal and Olympic flight attendant Eleni Xourgia all testified that

Dr. Hanson was administered oxygen at some point during the inci-

dent with equipment obtained from the Husains’ emergency kit.

Theocharis Fotiades and Nikolaos Belkas testified that oxygen was

supplied through Olympic’s canister and mask.

43a

her brother, Isaac, who brought the oxygen to Ms

Husain. |

As they attempted to resuscitate Dr. Hanson, Dr. Sab-

harwal and Ms. Husain administered oxygen through a

nasal canula. In addition, oxygen may have been admin-

istered through Olympic’s canister with an attached

mask. However, because Dr. Hanson was not able to

breathe spontaneously, Dr. Sabharwal determined that

the oxygen was not useful. About five minutes after Dr.

Sabharwal arrived on the scene, the Olympic flight crew

brought him a medical kit. By this point, however, Dr

Sabharwal believed that only a fully-equipped medical

crash kit could save Dr. Hanson's life.

As time passed, a few other passengers arrived in the

galley to assist Dr. Sabnarwal, but no one was able to

save Dr. Hanson. At approximately 4:40 p.m. Greenwich

Mean Time, Dr. Sabharwal announced that Dr. Hanson

had died.

During the entire incident, the airplane's Captain never

turned on the “no smoking” sign or otherwise requested

that the passengers in the rear of the plane stop smoking.

Ill. The Medical Causes of Dr. Hanson's Death

For religious reasons, no autopsy was performed on

Dr. Hanson's body after his death, and the direct cause

of his fatal attack is a matter of some dispute. Plaintiffs

argue that Dr. Hanson's death was caused by a severe

asthma attack brought on by inhalation of Cigarette

smoke. Defendant, on the other hand, argues that Dr.

Hanson died as a result of anaphylaxis caused by an

allergic reaction to food, or that he died as a result of

some other unknown medical problem. As discussed

below, the Court finds that plaintiff has established by a

preponderance of the evidence that smoke ingestion dur-

44a

ing the first two hours of Flight 417 was a primary cause

. Hanson’s death. }

ahs is an allergic emergency which may -

caused by an allergy to external material. Symptoms

anaphylaxis include skin discoloration, ne oueng Oo

the upper airway, disturbance in the intestinal tract, a

in blood pressure, shock or rapid, ineffective heartb ~ ;

An asthmatic attack, on the other hand, is a epson e

narrowing of the airway caused 7 air pollutants or other

irri such as cigarette smoke. |

The means sas and anaphylaxis overlap >

nificantly. Indeed, some severe asthma attacks may -

characterized as anaphylactic reactions. In this case, t ‘

course of events with respect to the timing of the meal,

Dr. Hanson’s smoke inhalation, and the onset of his vac

tion support theories labeling the cause of eo aon

anaphylaxis and asthma. Both anaphylaxis and asthm

attacks produce the same symptoms in the lower =

Either can result in death. Epinepherine can be used to

treat both anaphylaxis and asthma, but it is not neces-

sarily efficacious in either case. The fact that Dr. oo

received two or more injections of epinepherine _—

the flight and that the drug had no effect does not assis

the Court in arriving at a cause of death. . ai

Although anaphylaxis and asthma are sometimes dl :

ficult to differ: rtiate, the Court finds that smoke aon

a significant causal role in Dr. Hanson s death. As o

Dr. Golden and Dr. Wasserman acknowledged, cigarette

smoke can act as an irritant. Moreover, the greater an

individual’s exposure to smoke, both in terms of o~

and intensity, the greater the irritant effect. As -

Golden explained in his testimony before the Court, the

presence of an irritant can cause bronchospasm, con-

stricting an individual’s airways.

45a

The Court finds significant the testimony of the

Husain family and Dr. Sabharwal regarding Dr. Hanson’s

behavior in the Athens airport. During the hours-long

delay in Athens, Dr. Hanson used his inhaler frequently

and was increasingly bothered by the prevalent smoke.

To escape the effects of the smoke, Dr. Hanson illicitly

entered the first class lounge, where the air quality was

slightly better. Dr. Hanson’s problems in Athens indicate

his sensitivity to smoke on the day in question.

Once the family was airborne toward New York on

Flight 417, but prior to the in-flight meal service, Dr.

Hanson again complained about the smoke. During the

first hours of the flight, Dr. Hanson used his inhaler to

remedy the effects of the smoky air while aboard the

plane.* The Court cannot credit defendant’s suggestion

that Dr. Hanson’s breathing problems prior to the meal

were causally unrelated to his later asphyxiation. The

evidence before the Court suggests exactly the opposite

conclusion. Dr. Hanson explicitly complained that smoke

was affecting his breathing just hours before his death,

complained to his wife about the level of cigarette

smoke on the plane, and relied extensively on his inhaler

for support during the hours leading to his fatal attack.

To conclude, as defendant urges, that the smoke on

Flight 417 did not trigger Dr. Hanson’s death is to ignore

the chain of events leading up to his attack.

Defendant introduced evidence at trial to establish that

Dr. Hanson may have died as a result of an anaphylactic

8 Although the Court heard no direct evidence that Dr. Hanson

used his inhaler on the flight, the evidence shows that he was both-

ered by the smoke, and that he asked his wife for a new inhaler

because the inhaler in his possession had become empty. In light of

the fact that Dr. Hanson frequently relied on his inhaler to remedy the

adverse effects of ambient smoke, the Court finds that he used his

inhaler while aboard Flight 417.

46a

reaction to yeast, tomatoes or grapes in the in-flight

meal. This contention is belied by several facts in the

record. First, there is no evidence that Dr. Hanson ate any

grapes, tomatoes or bread-based products on the flight. In

fact, the only credible evidence regarding Dr. Hanson's

food intake was the testimony of his daughter, Sarah.

_According to Sarah, Dr. Hanson received a meal on the

flight, but did not eat the whole thing, and in fact shared

it with both of his neighbors. No witnesses testified that

they observed Dr. Hanson eating any of the foods to

which he was allergic while seated in row 48. Without

further evidence of Dr. Hanson’s sensitivities and his

food intake aboard the flight, the Court cannot conclude

that his death was caused by a reaction to the food.

Further, Dr. Hanson’s death lacked certain symptoms

that frequently appear in cases of anaphylaxis. Ana-

phylaxis caused by oral injection of an allergen com-

monly causes swelling in the upper airway. In this case,

Dr. Sabharwal observed that Dr. Hanson’s upper airway

was not obstructed. Anaphylaxis frequently, but not

always, causes discoloration, redness and hives on a vic-

tim’s chest and neck. Dr. Sabharwal noticed none of

those symptoms in this Case.

Moreover, the testimony of Dr. Sabharwal, the only

doctor who actually treated Dr. Hanson during his

trauma, supports the Court's conclusion. While Dr. Sab-

harwal testified that he could not definitively diagnose

the cause of Dr. Hanson’s death, he did offer a differ-

ential diagnosis, assessing the likely causes of death in

order of their probability. Dr. Sabharwal opined that, in

light of Dr. Hanson’s asthma and the obstruction of Dr.

Hanson’s airways, he most likely died as a result of sta-

tus asthmaticus, or “totally uncontrolled asthma.” The

second most likely cause of death, according to Dr. Sab-

harwal, was anaphylaxis, and the third was “cardiac

problems.” Failing each of these potential causes, Dr.

47a

Sabharwal concluded that Dr. Hanson’s death may have

been precipitated by unknown causes.

Dr. Golden's testimony further supports the Court’s

factual findings regarding the cause of Dr. Hanson’

death. Dr. Golden testified that, in the absence of food.

the only possible cause of death in this case would be an

asthmatic reaction. Because Dr. Hanson may have eaten

some of his meal, Dr. Golden concluded that it is diffi-

cult to distinguish whether Dr. Hanson's condition w

anaphylaxis or asthma. However, Dr. Golden was able a

mag Ze smoke was a Significant contributing fac-

ibe ——«_«_ regardless of whether he ate a

Dr. Wasserman, defendant’s expert witness in this

case, attributed Dr. Hanson’s death to asphyxiation or

heart failure brought on by a reaction to an allergen, pos-

sibly tomatoes or yeast. Even Dr. Wasserman sh

edged, however, that cigarette smoke may have

contributed to Dr. Hanson’s death, although he w

unable to determine the extent of that contribution r

In conclusion, the Court finds that Dr. Hanson’s death

was the result of respiratory distress which was caused

by an exacerbation of his asthmatic condition due to the

prolonged and extensive exposure to seco

. d-

on Olympic’s Flight 417. renee

DISCUSSION

I. Applicable Law: The Warsaw Convention

. This case Ly governed by the provisions of the Warsaw

onvention” ( the Convention”). The Convention is a

comprehensive international treaty governing the lia-

The Warsaw Convention is the popular name for the Con-

vention for the Unification of Certain Rules Relating to International

48a

bility of carriers in “all international transportation of

persons, baggage OF goods.” 49 U.S.C. § 40105. The pur-

poses of the Convention were to achieve uniformity and

to limit the liability of air carriers. See El Al Israel Air-

lines v. Tseng, 525 U.S. 155, 119 S.Ct. 662, 671-72, 142

L.Ed.2d 576 (1999); Carey v. United Airlines, Inc., 77

F.Supp.2d 1165, 1169 (D.Or.1999). The parties agree

that, because Dr. Hanson's death occurred during inter-

national travel, the Convention provides plaintiffs’ exclu-

sive remedy. See Tseng, 1 19 S.Ct. at 668. (“[R]ecovery

for a personal injury suffered ‘on board [an] aircraft or

in the course of any of the operations of embarking or

disembarking,’ if not available under the Convention, is

not available at all.”).

The Convention provides for strict liability for carri-

ers in certain situations, and precludes liability alto-

gether in others. Article 17 of the Convention explains

that a carrier “shall be liable” for death or bodily injuries

of passengers sustained during flight as the result of an

“accident.” Articles 20 and 22 limit a carrier’s liability

under Article 17 to $75,000 per passenger. However,

under Article 25, the $75,000 limitation does not apply

if the carrier has committed “wilful misconduct.”'® See

generally Hermano v. United Airlines, 1999 WL I 269187

(N.D.Cal. Dec. 21, 1999).

ll. The “Accident” Requirement

Article 17 of the Convention provides that

The carrier shall be liable for damages sustained in

the event of the death or wounding of a passenger Or

Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, T.S. No. 876

(1934), note following 49 U.S.C. § 40105.

10 ‘This term is more commonly spelled today as “willful mis-

conduct.” For the purposes of this memorandum, the Court will use

the modern spelling except for direct quotations.

49a

any other bodily injury suffered by a passenger, if the

accident which caused the damage so sustained took

place on board the aircraft during the course of any

of the operations of embarking and disembarking.

49 U.S.C. § 40105. The Supreme Court has interpreted

this language to require the occurrence of an “accident”

pe pmneive gi held liable under the Convention. See

r France v. Saks, 470 U.S. |

ab a. uase oapcenets 392, 396, 105 S.Ct. 1338,

In Saks, the Supreme Court defined “accident” as “an

unexpected or unusual event or happening that is exter-

nal to the passenger.” Saks, 470 U.S. at 405, 105 S.Ct

1338. The Court noted that “accident,” as that term is

used in the Convention, has a narrower definition than

the term “occurrence.” Jd. at 398, 105 S.Ct. 1338. This

inquiry is an objective one, and does not focus on the

perspective of the person experiencing the injury. See

Gotz v. Delta Airlines, Inc., 12 F.Supp.2d 199 | 201

(D.Mass.1998). Further, “when the injury indisputabl

results from the passenger’s own internal reaction to wd

usual, normal, and expected operation of the aircraft, it

has not been caused by an accident.” Saks, 470 U.S ‘at

406, 105 S.Ct. 1338. It is the cause of the injury not

merely the occurrence of the injury, that must qualify as

an accident. See id. at 399, 105 S.Ct. 1338; Gotz, 12

F.Supp.2d at 201. | 7

Despite these limitations, the Court emphasi

its definition “should be flexibly eset 0 common

ment of all the circumstances surrounding a passenger’s

injuries.” Id. at 405, 105 S.Ct. 1338. Other courts have

also concluded that the term “accident” should be “inter-

preted broadly.” See Carey, 77 F.Supp.2d at 1170.

; The Supreme Court has also explained that, while the

accident” must cause the passenger’s injury, it need not

be the sole causal factor. Saks, 470 U.S. at 405, 105 S.Ct

50a

1338. Rather, because “any injury is the product of a

chain of causes,” a plaintiff under the Convention need

only “prove that some link in the chain was an unusual

or unexpected event external to the passenger.” /d. at

406, 105 S.Ct. 1338.

In this case, plaintiffs posit three specific occurrences

aboard Flight 417 that might be construed as “accidents”

contributing to Dr. Hanson’s death: (1) Ms. Leptourgou’s

three refusals to move Dr. Hanson to another seat; (2)

the flight crew’s inability to provide a usable oxygen

canister in a timely manner, and (3) and the captain's

failure to turn on the “no smoking” sign during Dr. Han-

son’s attack. As discussed below, the Court concludes

that only the first of these occurrences was an “accident”

which caused Dr. Hanson’s death.

A. Refusal to Move Dr. Hanson

Plaintiffs first argue that Ms. Leptourgou’s refusal to

transfer Dr. Hanson to another row and her failure to fol-

low company procedure was an “unusual” or “unex-

pected” event. The Court agrees.

The negligent failure of the flight crew to appropri-

ately serve the needs of an ailing passenger can be con-

sidered an “accident” under the Convention. See Fishman

v. Delta Air Lines, Inc., 132 F.3d 138, 142 (2d Cir.1998)

(flight attendant negligently spilled scalding water on

passenger while attempting to attend to passenger's ear-

ache). A claim “does allege an accident if it arises from

some inappropriate or unintended happenstance in the

operation of the aircraft or airline. Thus, an injury

resulting from routine procedures in the operation of an

aircraft or airline can be an ‘accident’ if those proce-

dures or operations are carried out in an unreasonable

manner.” Id. at 143; see also Schneider v. Swiss Air

Transport Company Ltd., 686 F.Supp. 15 (D.Me.1988)

Sla

(finding possible accident where flight attendant refused

to assist passenger by asking other passengers sitting in

front of her to raise their seats); Langadinos v. American

Airlines, Inc., 199 F.3d 68, 71 (1st Cir.1999) (finding

possible accident where flight attendant imprudently

served alcohol to a passenger whose behavior was

already “erratic” and “aggressive”); Carey, 77 F.Supp.2d

at 1171 (flight attendant’s “acts of preventing plaintiff

and his children from changing seats, engaging in

heated, argumentative exchanges with plaintiff, inform-

ing him that he could be arrested if he did not stay in his

seat and if his children did not stay in their seats, and

publicly humiliating him meet the definition of ‘acci-

dent’ as articulated in Saks ").

| Defendant argues that no unusual event occurred dur-

ing the Husains’ flight. According to defendant, ambient

smoke is an expected and usual aspect of international

flying. See Warshaw v. Trans World Airlines, Inc., 442

F.Supp. 400 (E.D.Pa.1977) (routine repressurization of

cabin was not an accident, even though it caused plain-

tiff to lose his hearing); Saks, 470 U.S. at 394, 105 S.Ct

1338 (routine cabin pressurization during landing is not

an accident); Gotz, 12 F.Supp.2d 199 (injury to passen-

ger during attempt to stow baggage in overhead com-

partment was not accident, because crew “worked

perfectly”).

The Court does not dispute that smoke in the cabin

may be an expected aspect of international travel.

Indeed, it is clear from the record that the Husains knew

before boarding that the January 4 flight would have a

smoking section. However, defendant’s argument misses

the mark. The smoke in the cabin was not the “unusual”

or “unexpected” event which caused Dr. Hanson’s death

although, as detailed above, the smoke undoubtedly had

a significant place in the causal chain. Rather, the

52a

unusual and unexpected event on which plaintiffs base

their claim was the failure of the flight attendant to ade-

quately respond to Ms. Husain’s transfer requests.

Indeed, in both Warshaw and Gotz, in which the courts

found that injuries not attributable to unusual aircraft

operations were not actionable under the Convention, the

courts specifically mentioned that the injured passengers

had failed to request assistance from the flight crew. In

this case, the opposite is truce. With increasing urgency,

Ms. Husain three times requested the crew’s assistance

prior to her husband’s death, and her request was thrice

denied.

Under no reasonable interpretation of the facts can

one conclude that Ms. Leptourgou’s failure to assist Dr.

Hanson was expected orusual. The Court has heard

extensive testimony on the standard of care for flight

attendants in situations such as this, and concludes that

Ms. Leptourgou acted in an unexpected and unusual

manner in several respects.

First, the recognized standard of care for flight atten-

dants during international air travel demands that a flight

attendant make efforts to accommodate a passenger who

indicates that he or she needs to be moved for medical

reasons. In this case, despite Ms. Leptourgou’s repeated

statements that the flight was full, eleven seats stood

unoccupied. The Court can conceive of no acceptable

reason for Ms. Leptourgou’s refusal to assist Dr. Hanson

after Ms. Husain’s second and third requests. Moreover,

according to Diane Fairechild, a flight attendant with

21 years of experience in international travel, even if

the flight had no empty seats in the economy section,

the crew should have transferred Dr. Hanson to an

empty seat in the business class section of the cabin.

Notably, Ms. Husain’s suggestion to this effect during

her third plea for a seat change went unheeded by Ms.

Leptourgou.

53a

Ms. Xourgia, now a chief cabin attendant working for

Olympic, testified that, if she were in Ms. Leptourgou’s

position at the time of Ms. Husain’s third request (i.e

after takeoff, when smoking had commenced in row 5 1),

she would have transferred Dr. Hanson “immediately "

Ms. Fairechild, testified that, according to recognized

industry standard of care, Ms. Leptourgou “should have

absolutely responded” to Ms. Husain’s requests.

Second, even if the flight were entirely full, the flight

aitendant should have attempted to move Dr. Hanson

Ms. Fairechild testified that, when faced with a medical

request like Ms. Husain’s during a full flight, the crew

will often attempt to entice other passengers to switch

their seats. In this case, a seat transfer would not have

been difficult to effectuate, consideri.g that 17 passen-

gers seated in the cabin’s non-smoking section were

non-revenue” passengers. The evidence reveals that

such a traisfer would be appropriate under the control-

ling standard of care. Even Theocharis Fotiades, the

chief cabin attendant on Flight 417, explained that Ms

Leptourgou should “definitely” have attempted to find

another seat for Dr. Hanson when Ms. Husain made her

requests.

‘Third, not only did Ms. Leptourgou’s failure to act

violate the accepted industry standard of care, it also

violated Olympic Airways’ policy. As Mr. Fotiades tes-

tified at trial, Olympic crew members generally make

efforts to move passengers who become ill during flights

if moving those passengers will assist in their recovery

Mr. Fotiades explained that this policy applies when 2

passenger must be moved because of smoke-related ill-

ness. Further, according to Mr. Fotiades, Olympic flight

attendants are familiar with this policy Ms. Leptourgou,

however, entirely ignored it. Such behavior cannot be

considered either expected or usual.

54a

Fourth, even if Ms. Leptourgou did not mp nt

assist Dr. Hanson to find a new seat, Olympic —

required that she, at least, alert the chief cabin atten —

(“CCA”) of Ms. Husain’s medical requests. Ms. Xourg! ;

testified that as a flight attendant in Ms. omen 4

position, she would have immediately contactec vs

CCA when Ms. Husain requested a seat change prior 0

takeoff. Although no written policy was placed sora

dence by the parties. Ms. Xourgia testified oat a -

Olympic policies require that when a passenge: in —

that he needs to be moved for a medical —

flight attendant must report that request to the - a

In this case, Ms. Leptourgou did not contact t “ i

cabin attendant to alert him to Dr. Hanson s medica tl

dition or Ms. Husain’s requests. In fact, according to '

evidence before the Court, Ms. Leptourgou did not con

tact any other members of the flight crew eerie

Ms. Husain’s three requests. Nor did she ask or :

member of the crew whether or not the flight _— ull.

Mr. Fotiades, the chief cabin attendant, did ao 8

about Ms. Husain’s requests for a seat change until a -

Dr. Hanson had died. Had he learned of the requests a,

lier in the flight, Mr. Fotiades testified that he — .

have made further inquiries and attempted to move VT.

to another seat. .

ge because of Ms. Husain’s precautionary =

in both the New York and the Cairo airports, a

Leptourgou's failure to assist Dr. Hanson is we m ‘

unexpected and unusual than in the typical case O a =

senger transfer request. At the New York — w .

the Husains first learned that Olympic permitte sow

ing on its flights, Ms. Husain informed the c ec ten

agent that her husband was “susceptible to smoke —

could not “be in any smoke.” As a result of this ini

conversation, the Husains had reason to expect tha

5Sa

Olympic was aware of Dr. Hanson’s sensitivity to smoke.

This expectation was further bolstered by Ms. Husain’s

conversation with the check-in agent at the Cairo airport

prior to the family’s return trip. After the Husains were

given their tickets in Cairo, Ms. Husain returned to the

counter to ensure that her husband had been given a seat

in the non-smoking sections of the two return flights. At

that time, Ms. Husain showed the agent a letter from Dr.

Hanson's brother explaining that Dr. Hanson had a his-

tory of asthma. Again, one would expect that, as a result

of this conversation, Olympic was aware of Dr. Hanson's

medical needs. In light of this fact, Olympic’s subse-

quent failure to move Dr. Hanson after three requests is

even more unusual and unexpected.

Moreover, Dr. Hanson's expectation that Ms. Husain’s

requests would be accommodated was even more rea-

sonable in light of the normal operating procedures of

international carriers. Diane Fairechild testified that

medical information and special requests like Ms.

Husain’s are normally inputted in a “special information

log,” which is given to the airplane's CCA prior to take-

off. The log serves to inform the CCA of the special

needs of the passengers. In this case, despite Ms.

Husain’s warnings to Olympic check-in agents regarding

her husband’s condition, nothing to that effect appeared

in Olympic’s special information log. A passenger in Dr.

Hanson’s position should expect that medical needs

expressed to an agent prior to check-in will be consid-

ered once the flight has been boarded. In Dr. Hanson's

case, that reasonable expectation was not met.

In sum, Ms. Leptourgou’s behavior was far from usual

or expected. She violated the industry standard of care,

she misrepresented to Ms. Husain that the flight was

full, and she acted in contravention of accepted Olympic

56a

Airways policy. This aberrant behavior was both unex-

d unusual. |

ore rw of this evidence, defendant analogizes toa

number of published cases in which the Convention $

“accident” requirement was narrowly applied. For

instance, defendant relies on Margrave v. British Air-

ways, 643 F.Supp. 510 (S.D.N.Y.1986), in which the dis-

trict court noted that sitting in “a very cramped onncere!

during a flight delay is neither unusual nor unexpected.

The plaintiff in Margrave sat in her seat for pa we

mately five hours while her plane waited for ner

Because “normal travel procedures were followed y

the crew, the court concluded that no “accident ha

occurred. Id. at 512. Defendant argues that, under Mar-

grave, sitting in an assigned seat cannot be considered ~

“accident,” even if remaining seated causes injury to the

passenger. However, Margrave is distinguishable from

the instant case. In Margrave, the plaintiff never told a

flight attendant about her discomfort. Id. at 511. In con-

trast. here the unusual event was not Dr. Hanson's seat

location, but the flight attendant’s refusal to accommo-

is needs despite three requests. ;

ay asco also mee a number of cases in which the

crew's failure to assist an ailing passenger was held to

not constitute an “accident.” For instance, In a

Lufthansa German Airlines, 119 F.3d 1515 (11t

Cir.1997), the Eleventh Circuit held that an airplane

crew’s negligent decision to continue a flight to =

scheduled destination despite a passenger s in-flig ut

heart attack was not an actionable “accident under ie

cle 17. See also McDowell v. Continental Airlines, -

F.Supp.2d 1313, 1 320 (S.D.Fla.1999) (reluctantly - :

lowing Krys ); Fischer v. Northwest Airlines, Inc., 6

F.Supp. 1064, 1065 (N.D.11.1985) (refusal to aid pas-

senger with heart attack was not “accident”). But see

Jia

Seguritan v. Northwest Airlines, Inc., 86 A.D.2d 658, 446

N.¥.S.2d 397, 398-99 (N.Y.App.Div.1982) ( “The ‘acci-

dent’ is not the heart attack suffered by the decedent.

Rather, it is the alleged aggravation of decedent's con-

dition by the negligent failure of defendant's employees

to render her medical assistance.”).

The seminal case in this line of “failure to assist”

decisions is Abramson v. Japan Airlines Co., Ltd., 739

F.2d 130 (3d Cir.1984). In Abramson, the plaintiff was

suffering from a preexisting paraesophagael hiatal her-

nia when he boarded the flight. The plaintiff’s condition

worsened during the flight, and he asked the flight atten-

dant if he could lie down in empty seats so that he could

apply a useful “self help” remedy which included mas-

saging his stomach and occasionally inducing vomiting.

Id. at 131. The court found that no accident had occurred

because the aggravation of the passenger's injury was

not an unusual or unexpected occurrence. /d. at 132. The

court noted that “[i}]n the absence of proof of abnormal

external factors, aggravation of a pre-existing injury dur-

ing the course of a routine and normal flight should not

be considered an ‘accident’ within the meaning of Arti-

cle 17.” Id. at 133.

Each of these cases, including Abramson, is distin-

guishable from the one at bar. Unlike Dr. Hanson, the

passengers in each of the cited cases suffered an injury

as a result of entirely “internal” forces. While the inac-

tion of the crew may have aggravated the passengers’

injuries, it did not precipitate the injuries as such. Here,

on the other hand, the flight attendant’s failure to trans-

fer Dr. Hanson—or her failure to at least follow the

proper procedures—precipitated Dr. Hanson's injury and

death. See Fishman, 132 F.3d at 141-142 (distinguishing

Abramson and Fischer on similar grounds).

58a

Additionally, none of the cases cited by defendant

arose from a crew member’s blatant disregard of indus-

try standards and airline policies. As described above,

the testimony in this case indicates that Ms. Leptour-

gou’s actions were anything but usual. When « passenger

boards an airplane, he or she should be able to expect

that the flight crew will comply with accepted proce-

dures and rules. A failure to do so is unexpected.

Finally, to the extent that any of defendant's cited

cases are not distinguishable from the instant case, the

Court finds that they are both unconvincing and non-

binding in this Circuit. The Court finds littie merit in the

notion that a flight crew has no legal obligation to care

for its ill or endangered passengers. The practical effect

of cases like Abramson is to dissolve the airlines’ duty

of care and to “create[ } an incentive to airlines engaged

in international travel not only not to exercise the high-

est degree of care but to completely refuse to treat” or

assist passengers with medical problems. McDowell, 54

F.Supp.2d at 1320. In the absence of binding authority,

the Court declines to adopt such a rule."

The Court concludes that when a flight attendant’s

acts create a foreseeable risk of injury to passengers, an

“accident” has occurred. See Langadinos, 199 F.3d at

71. In this case, Ms. Leptourgou’s failure to respond

appropriately to Ms. Husain’s requests and her failure to

i) Additionally, the Court cannot turn @ blind eye on the sudden

sea change in interpretation of the Convention that has occurred in

the wake of the Supreme Court’s recent decision in Tseng, supra. In

reaching its conclusions of law in this case, the Court agrees with

the McDowell court that cases such as Abramson and Krys create

“absurd results” in the wake of Tseng. McDowell, 54 F.Supp.2d at

1319. Viewed in the proper context, the holdings of these pre-Tseng

cases are less than compelling. See generally McDowell, 54 F.Supp.2d

at 1319 (discussing the effect of Tseng on Warsaw Convention

jurisprudence).

59a

comply with the applicable standards of care were both

unexpected” and “unusual.” See Tsevas v. Delta Ai

Lines, Inc.. 1997 WL 767278 (N.D.ill. Dec. 1 1997)

(flight attendant’s failure to move passenger u i

request in order to keep her away from a second i.

senger’s lewd behavior was an “accident” under Article

17). Therefore, Ms. Leptourgou’s behavior is actionabl

under the Warsaw Convention. ;

Having concluded that Ms. Leptourgou’s failure o

refusal to assist Dr. Hanson constituted an “accident :

the Court must next consider whether that “accident”

caused Dr. Hanson’s death. As discussed above, th

coincidental occurrence of both an accident and :

injury aboard an international flight does not ac

ily support a cause of action under the Convention To

prevail, plaintiffs must establish that the accident caus d

the injury. Gotz, 12 F.Supp.2d at 201. In Saks th

Supreme Court recognized that “any injury is the - 4.

uct of a chain of causes.” Saks, 470 U.S. at 406, 105

S. Ct. 1338. To establish liability, a plaintiff need onl

prove that some link in the chain was an unusual po

unexpected event external to passenger.” /d. Courts in

traditionally applied regular proximate cause analysis .

determine carrier liability under the tate S :

Margrave, 643 F.Supp. at 512. ines

In light of this standard, the Court finds that

Olympic’s failure to move Dr. Hanson caused D

Hanson’s death. As discussed above, Dr. Hanson’s death

was caused, at least in significant part, by smoke inhala-

tion which triggered a severe asthmatic reaction. Dr

Hanson was seated in row 48, only three rows in front of

the designated smoking section. Four witnesses at this

trial were seated in Dr. Hanson’s vicinity on Flight 417

and all four noted that the ambient smoke was noticeabl

thick in row 48. At several points in the flight, Dr. Han-

60a

son indicated his discomfort with the seating arrange-

ment. As noted above, Ms. Leptourgou or another mem-

ber of the Olympic crew could have moved Dr. Hanson

to any of the eleven empty seats on the plane or to one

of the 17 non-smoking seats occupied by non-revenue

passengers. If Ms. Leptourgou had moved Dr. Hanson

out of the vicinity of the smoking section, he would not

have died aboard Flight 417. Therefore, the Court must

conclude that Dr. Hanson’s death was caused by an acci-

dent, triggering liability under the Warsaw Convention.

B. Administration of Oxygen

In addition to Ms. Leptourgou’s failure to move Dr.

Hanson to another seat, plaintiffs argue that two other

“accidents” occurred aboard Flight 417 which caused Dr.

Hanson’s death. First, plaintiffs assert that defendant’s

failure to effectively administer oxygen to Dr. Hanson

through a face mask should be considered an “accident”

under the Convention. According to plaintiffs, Dr. Han-

son may not have died if the flight crew had properly

prepared and supplied oxygen during Dr. Hanson’s fatal

attack.

To resolve this question, the Court must engage ina

three-step inquiry. First, the Court must decide whether,

as a purely legal matter, the failure to properly admin-

ister oxygen can be considered an accident. Second, the

Court must decide as a factual matter whether the acts of

the flight crew in this case constituted an unexpected or

unusual event. If so, the Court must finally determine

whether the flight crew’s acts caused Dr. Hanson’s death.

Turning first to the legal issue, the Court is aware of

two published cases which address the question of

whether an airline may be held liable under the Con-

vention for the failure to properly administer oxygen.

In Tandon v. United Air Lines, 926 F.Supp. 366

6la

(S.D.N. Y.1996), the plaintiff suffered a heart attack dur-

ing an international flight. When a doctor attempted to

administer oxygen from the airplane’s on-board canister,

he discovered that the canister had expired two month’s

earlier, and that it contained insufficient oxygen supply.

Id. at 368. The plaintiff did not receive proper care, and

died aboard the flight. The district court found that,

because no unusual or unexpected event external to the

plaintiff had triggered the plaintiff’s heart attack, the

later failure of the defendant to save her did not consti-

tute an accident. Jd. at 369.

The Court declines to follow the rule enunciated in

Tandon. The Court cannot agree with the Tandon court

that an expired oxygen container or a negligently main-

tained medical kit can somehow be considered an

expected” or “usual” aspect of international flight.

Rather, the Court adopts the reasoning of the district

court in McDowell v. Continental Airlines, 54 F.Supp.2d

1313 (S.D.Fla.1999). In McDowell, the court noted that

improper maintenance of a carrier’s on-board medical

equipment can be considered an “accident.” 54 F.Supp.2d

at 1318. In determining whether an accident had occurred,

the court considered the carrier’s level of care in main-

taining the medical kit and the carrier’s compliance or

noncompliance with federal regulations and industry

standards. Id. at 1318. Although the court in McDowell

concluded that the plaintiff had failed to establish facts

showing negligent maintenance of the on-board medical

kit, the court’s discussion is instructive. Therefore, the

Court holds that the failure to properly maintain or

administer oxygen to an ailing passenger aboard an

international flight may be considered an accident.

The Court must next apply this legal conclusion to the

facts of this case. As described above, the testimony on

this subject is contradictory at best. Both Dr. Sabharwal

62a

and Ms. Husain testified that the Olympic crew members

were unable to provide bottled oxygen with an attached

mask, while members of the crew testified that they did,

in fact, provide an oxygen mask and canister, and that

the apparatus functioned properly. Mr. Fotiades was par-

ticularly adamant in his testimony that he observed Dr.

Hanson breathing oxygen through an Olympic-supplied

mask at some point during the incident.

In light of this conflicting testimony, the Court finds

that the evidence on the question of the oxygen admin-

istration is inconclusive. While the flight crew may have

had some trouble preparing the oxygen when first asked

by Ms. Husain, it is far from clear that the Olympic oxy-

gen canister and mask were not used on Dr. Hanson or

that the delay during the flight crew’s troubles lasted

more than a few moments. The Court notes that the time

period between Ms. Husain’s first request for oxygen

and Dr. Hanson’s death was approximately ten minutes.

During a significant portion of that time, Dr. Sabharwal

and Ms. Husain were administering CPR, making the

availability of oxygen irrelevant. In the flurry of intense

activity that preceded Dr. Hanson’s death, it is possible

that both Ms. Husain and Dr. Sabharwal failed to notice

that Olympic’s oxygen tank was in use. —

Additionally, even if the flight crew did have some

trouble preparing the oxygen canister, the Court cannot

find that an accident necessarily occurred. In the heat of

the moment, a certain amount of fumbling is normal and

expected, even by experienced flight attendants. Plain-

tiffs have not established that the flight crew's problems

providing an oxygen canister lasted for a significant

iod of time.

ern the Court finds that plaintiffs have failed to

meet their burden of establishing that the flight crew s

behavior in preparing the oxygen was unusual or unex-

63a

pected. Therefore, the Court concludes that the flight

crew’s acts during Dr. Hanson’s fatal attack did not con-

stitute an accident.

Further, even if the acts of the flight crew could be

described as an “accident,” the Court finds as a matter of

fact that any failure to properly administer oxygen did

not cause Dr. Hanson’s death. Even if the flight crew did

commit an error, the Court cannot conclude that this

error provided a link in the causal chain that resulted in

Dr. Hanson’s death. See Saks, 470 U.S. at 406, 105 S.Ct.

1338. In reaching this conclusion, the Court is cognizant

of the testimony of Dr. Zarir G. Marawala, who

explained that a nasal canula is typically less effective

than a mask when a patient is experiencing respiratory

distress. According to Dr. Marawala, a person in such a

condition is more likely to attempt to breathe through his

mouth.

While this may be true as a general proposition, the

Court finds that the use of a mask would not have been

useful in this case. By the time Ms. Husain and the

Olympic crew attempted to administer oxygen to Dr.

Hanson, his condition had progressed beyond salvation.

According to the testimony of Dr. Wasserman, the

administration of oxygen by way of a mask or a nasal

canula is generally useless when a patient is experienc-

ing airway obstruction. After reviewing the entire

record, Dr. Wasserman concluded that any error in the

administration of oxygen and CPR to Dr. Hanson did not

cause his death. Rather, by the time Dr. Hanson was

seated in row 19, properly-administered oxygen, even

through a mask, would not have prevented Dr. Hanson’s

death. Dr. Golden’s testimony also supports this con-

clusion. According to Dr. Golden, when a patient’s air-

ways are constricted, an oxygen mask is no more

effective than a nasal canula.

64a

On the basis of this testimony, the Court concludes

that, even if the flight crew’s delay in providing oxygen

to Dr. Hanson constituted an “accident” under the terms

of the Convention, that “accident” did not eause Dr.

Hanson’s death.

C. Failure to Ignite “No Smoking” Sign

Plaintiffs also argue that a separate “accident”

occurred when the flight crew failed to request that the

smoking passengers extinguish their cigarettes. Plaintiffs

argue that the captain should have ignited the sign to

ensure that no passengers would smoke in the vicinity of

Dr. Hanson during his attack. According to plaintiffs, the

failure of the captain and the flight crew to request that

other passengers stop smoking while Dr. Hanson

received oxygen constituted an “unusual” or “unex-

pected” event.

The Court rejects this argument for three reasons.

First, according to the testimony of Olympic Airways

captain Demetrios Karayannis, it is not standard proce-

dure to ignite the “no smoking” whenever a passenger is

experiencing medical problems. Viewed in light of this

testimony regarding the standard of care, the Court can-

not credit plaintiffs’ argument.

Second, the Court finds nothing in the record to sug-

gest that any passengers were smoking in the vicinity of

Dr. Hanson while he received oxygen. Indeed, the smok-

ing section of the airplane began in row 51, but, by the

time the crew was aware of Dr. Hanson’s distress, he was

seated 31 rows away in row 19. Therefore, the flight

crew’s failure to turn on the “no smoking” sign did not

constitute an unexpected or unusual event.

Finally, as discussed above, by the time the adminis-

tration of Dr. Hanson’s oxygen began, his condition had

already become irreversibly fatal. Whatever minimal

65a

level of ambient smoke may have reached row 19 during

the incident, it certainly had no effect on Dr. Hanson's

treatment, and did not cause his death.

Ill. Willful Misconduct

As discussed in section IIA above, Ms. Leptourgou’s

failure to move Dr. Hanson to another seat was an “acci-

dent, creating liability under the Warsaw Convention.

Carrier liability under the Convention is normally lim-

ited to $75,000 per passenger. However, that limitation

on damages does not apply if the defendant airline com-

mitted willful misconduct in causing the accident. See

Koirala v. Thai Airways Int'l, 126 F.3d 1205, 1209 (9th

Cir.1997). Article 25, the Convention’s “willful mis-

conduct” provision, does not create a distinct cause of

action separate from Article 17, the Convention's “acci-

dent” provision. See McDowell, 54 F.Supp.2d at 1320.

Rather, Article 25 simply modifies the potential recov-

ery of a passenger who has established the occurrence of

both an “accident” and “willful misconduct.” /d. In other

words, if no “accident” occurred on the flight, the Court

cannot find that defendant is separately liable for the

“willful misconduct” of the crew. In this case, because

the Court has concluded that an “accident” caused Dr.

Hanson’s death, the Court must next determine whether

the behavior of the flight crew constituted “willful mis-

conduct.”

; The Ninth Circuit has defined “willful misconduct” as

the intentional performance of an act with knowledge

that the. . . act will probably result in injury or damage

or the intentional performance of an act in such a man-

ner as to imply reckless disregard of the probable con-

sequences.” Koirala, 126 F.3d at 1209. See also

Hermano, 1999 WL 1269187 at *5 (citing Piamba

Cortes v. American Airlines, Inc., 177 F.3d 1272, 1290

66a

(11th Cir.1999)) (to establish willful misconduct, plain-

tiff must show that defendant acted with “intent to cause

damage” or “ ‘recklessly and with knowledge’ that dam-

age would probably result.”). In a case published earlier

this year, the Fourth

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