# Petition for Writ of Certiorari — Olympic Airways v. Husain > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0644%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2004 - **Citation:** 540 U.S. 644 ## Text m™, ' U2. (\ ) v 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 \\ i 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 il 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 iv 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 vi ? 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. 2 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. 4 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 5 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. 6 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 © The case was tried to the district court in accordance with the Foreign Sovereign Immunities Act, which provides only for non-jury civil actions. 28 U.S.C. §§ 1330(a), 1605. A 33a, n. 1. 7 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. 8 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 9 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- 10 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). ll 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. 12 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 13 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. 14 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. 15 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 16 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. 17 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- ~ 18 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. 19 (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. 20 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. 21 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 22 (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. 23 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 la 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. 2a 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. 3a 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]. 4a 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). Sa 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 6a \ 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. Ta 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. 8a 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 © The district court found the testimony regarding who sup- 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. 9a 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 inhale [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0644%3A02. Public record. Not legal advice.