Petition for Writ of Certiorari — Blansett v. Continental Airlines, Inc.
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() Supreme Court, U.S
—— OF BET UCT To 2004
IN THE OFFICE OF THE CLERK
Supreme Court of the United States
MICHAEL “SHAWN” BLANSETT, MODESTA N. BLANSETT,
INDIVIDUALLY AND AS NEXT FRIENDS OF
MCKENNA BLANSETT AND BLAKE BLANSETT, MINORS,
Petitioners,
wa
CONTINENTAL AIRLINES, INC..
Respondent.
Petition for Writ of Certiorari to the
United States Court of Appeals
for the Fifth Circuit
PETITION FOR WRIT OF CERTIORARI
KENNETH T. FIBICH ROGER D. TOWNSEND *
FIBICH HAMPTON LEEBRON JENNIFER R. TILLISON
& GARTH, LLP ALEXANDER DUBOSE JONES
1401 McKinney, Ste 1800 & TOWNSEND LLP
Houston, Texas 77010 1844 Harvard Street
(713) 751-0025 Houston, Texas 77008
72.
A. CRAIG EILAND (713) 523-2358
2423 Market Street Counsel for Petitioners
Galveston, Texas 77550
(409) 763-3260
* Counsel of Record
LE ALE TLL ERA EIN ARMM NET IO DEERME ART HTN BGM HEE AIRES ARTS 2A ROY, APR ES AR TE MLE
WILSON-EPES PRINTING CO., INC. — (202) 789-0096 -— WASHINGTON, D. C. 20001
QUESTION PRESENTED
This case presents an issue left unresolved in Olympic
Airways v. Husain, 540 U.S. 644, 124 S. Ct. 1221, 1229
n.9 (2004):
Does an airline’s failure to warn its passengers of the
risk of developing deep—vein thrombosis constitute an
“accident” under the Warsaw Convention?
(i) 2
ii
PARTIES
Petitioners are Michael “Shawn” Blansett, Modesta N.
Blansett, Individually and as next friends of McKenna .
Blansett and Blake Blansett, minors. ;
:
|
|
Respondent is Continental Airlines, Inc.
TABLE OF CONTENTS
Page
QUESTION PRESENTED. ...00cccsccsscsccsccsccccsesccssesesonsseoe i
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BASIS FOR JURISDICTION IN THIS COURT......... l
STATUTORY PROVISIONS INVOLVED................. 2
ADDITIONAL STATUTES OR OTHER
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RPA RRIUEEUE COP BEEES CASE oon ccccnccecsccnscesnccecsscceasece 3
REASONS FOR GRANTING WRIT ....0....ccccccccceseseeee: 4
I. THE FIFTH CIRCUIT HAS DECIDED AN
IMPORTANT QUESTION OF FEDERAL
LAW THAT HAS NOT BEEN, BUT
SHOULD BE, SETTLED BY THIS COURT... 5
A. A uniform interpretation of “accident”
under the Warsaw Convention is important
to international airlines, their passengers,
RTS RSI ASE ro 6
B. The issue implicates important policies of
the Federal Aviation Administration, but
the Fifth Circuit’s decision needlessly
creates tension with the policies of other
INIT is sii laeadiclabdbntasssatitanneusensauskanncbisen 8
C. Although the House of Lords and the
High Court of Australia have now
agreed to address this issue, those courts
have traditionally welcomed this Court’s
ES a EER 9
D. Resolving this issue also would resolve
multi-district litigation ...............ccccccceseeeees 10
(iii)
iV
TABLE OF CONTENTS—Continued
Page
Il. THE FIFTH CIRCUIT’S INTERPRETA-
TION OF “ACCIDENT” IS PROBABLY
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Vv
TABLE OF AUTHORITIES
CASES Pages
Air France v. Saks,
SFR Uh, SU CED iscitissinsanicanalaancciiaenins 6
Blansett v. Cont’l Airlines, Inc.,
STP Oe 077 Ce es BO tates ae eh
Blansett v. Cont’l Airlines, Inc.,
237 F. Supp. 2d 747 (S.D. Tex. 2002)............... oe
Blansett v. Cont’l Airlines, Inc.,
246 F. Supp. 2d 596 (S.D. Tex. 2002)............... 2
Cellco P’ship v. FCC,
SSF Fae ee es CE: ee citietsteinttteannin eaten 8
Deep Vein Thrombosis & Air Travel Group Litig.,
[2003] EWCA Civ. 1005 (July 3, 2003).......... 4,10, 12
Eastern Airlines, Inc. v. Floyd,
PF OS A TED issicadpttiicinsndyuhaietnbtaainesinadaionn 6
El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng,
Rae Oh BSD CEO OE ticccthsitdienaiesinsabindeaties 6, 11
Fulop v. Malev Hungarian Airlines,
175 F.Supp. 2d 651 (S.D.N.Y. 2001)................ 13
Laborers’ Pension Fund v. Blackmore Sewer
_ Constr., Inc.,
yy. Swe ft Te, 1} Ay *: eee nTenD 8
Olympic Airways v. Husain,
540 U.S. 644, 124 S. Ct. 1221 (2004) oe ., passim
Qantas Ltd. v. Povey,
[2003] VSCA 227, 2003 WL 23000692
CEROE. Zap BED ccceniennnstnihesiniteisgsettdliihanidiaulane 4,10, 12
Witty v. Delta Airlines, Inc.,
366 F.3d 380 (Sth Cir. 2004)... eee eeeeeeeee 8
vi
TABLE OF AUTHORITIES
STATUTES & TREATIES
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Convention for the Unification of Certain Rules
Relating to International Transportation by
Air, Oct. 12, 1929 (“Warsaw Convention”),
49 Stat. 3000, T.S. No. 876 (1934), Note
following 49 U.S.C. § 40105... eeeeeeees
Agreement Relating to Liability Limitations of
the Warsaw Convention and the Hague
Protocol, CAB 18900, approved by CAB
Order E-23680, May 13, 1966, 31 Fed. Reg.
TIES (TPE ctaguitctnintirengias
Montreal Protocol No. 4 to Amend the Conven-
tion for the Unification of Certain Rules
Relating to International Carriage by Air
Signed at Warsaw on 12 October 1929 as
Amended by the Protocol Done at the Hague
on 28 September 1955, signed at Montreal on
25 September 1975, ratified by the United
States 1998, reprinted in S. Exec. Rep. No.
FDIS CEI D ancconsssccisicasentiqemedeatuconatennelamananiae
IN THE
Supreme Court of the United States
No.
MICHAEL “SHAWN” BLANSETT; MODESTA N. BLANSETT,
INDIVIDUALLY AND AS NEXT FRIENDS OF
MCKENNA BLANSETT AND BLAKE BLANSETT, MINORS,
Petitioners,
We
CONTINENTAL AIRLINES, INC..,
Respondent.
Petition for Writ of Certiorari to the
United States Court of Appeals
for the Fifth Circuit
PETITION FOR WRIT OF CERTIORARI
= OPINIONS BELOW
The opinion of the court of appeals is reported as Blansett
v. Continental Airlines, Inc., 379 F.3d 177 (Sth Cir. 2004).
The opinions of the district court are reported as Blansett v.
Continental Airlines, Inc., 246 F. Supp. 2d 596 (S.D. Tex.
2002), and Blansett v. Continental Airlines, Inc., 237 F. Supp.
2d 747 (S.D. Tex. 2002).
BASIS FOR JURISDICTION IN THIS COURT
The court of appeals entered its final judgment on July 21,
2004. This Court has certiorari jurisdiction under 28 U.S.C.
§ 1254(1).
9
ae
STATUTORY PROVISIONS INVOLVED
(1) Convention for the Unification of Certain Rules Relat-
ing to International Transportation by Air, Oct. 12, 1929
(“Warsaw Convention’), 49 Stat. 3000, TS 876, Note
Following 49 U.S.C. § 40105.
e 2 ©
Chapter III. Liability of the Carrier
Article 17
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 dis-
embarking.
x *k &*
ADDITIONAL STATUTES OR OTHER PROVISIONS
The relevant portions of the following statutes and other
provisions are reproduced in the appendix:
49 U.S.C. § 44701(a)(5)
14. C.F.R. § 121.1(a)
14C.F.R. § 121.11
14 C.F.R. § 121.317
14 C.F.R. § 121.535(c)(2)
14 C-F.R. § 121.535(f)
' The Warsaw Convention has been amended by the Agreement
Relating to Liability Limitations of the Warsaw Convention and the
Hague Protocol, CAB 18900, approved by CAB Order E-23680, May 13,
1966, 31 Fed. Reg. 7302 (1966), and Montreal Protocol No. 4 to Amend
the Convention for the Unification of Certain Rules Relating to
International Carriage by Air Signed at Warsaw on 12 October 1929 as
Amended by the Protocol Done at the Hague on 28 September 1955,
signed at Montreal on 25 September 1975, ratified by the United States
1998, reprinted in S. Exec. Rep. No. 105-20 (1998). These amendments
do not affect Article 17.
14 C.F.R. § 121.537
14 C.F.R. § 121.571
STATEMENT OF THE CASE
During an international flight from Houston to London,
Shawn Blansett suffered a permanently debilitating cerebral
stroke, which was caused by a blood clot that formed during
the flight. As a result, Shawn is now bound to a wheel chair,
unable to walk or talk normally, and unable to take care of his
own basic needs. The Blansetts filed suit against Continental
Airlines, Inc., alleging that Continental’s failure to warn
about the risks of developing deep—vein thrombosis (DVT)
constitutes an “accident” under the Warsaw Convention.
Because the Warsaw Convention is a treaty, the district
court exercised federal-question jurisdiction under 28 U.S.C.
§ 1331.
Continental moved to dismiss the Blansetts’ failure-to-
warn claim and moved for partial summary judgment. Both
motions were denied. The district court ruled that the
Blansetts stated a viable claim since Continental’s failure to
warn of the risk of deep-vein thrombosis was an “accident,”
because Continental’s failure was an “abnormal and unrea-
sonable application of routine procedure, and thus, it was
unusual and unexpected.” Blansett v. Cont’l Airlines, Inc.,
237 F. Supp. 2d 747, 751-52 (S.D. Tex. 2002), rev'd, 379
F.3d 177 (Sth Cir. 2004). In denying summary judgment, the
district -court concluded: “An airline’s violation of an
industry standard of care, alone, can be ‘an unusual or
unexpected event or happening that is external to the
passenger,’ . . . and thus, an ‘accident.’” Blansett v. Cont'l
Airlines, Inc., 246 F. Supp. 2d 596, 601 (S.D. Tex. 2002),
rev'd, 379 F.3d 177 (Sth Cir. 2004). The district court recog-
nized that a contrary ruling “would have the ironic result
of rewarding individual airlines for adopting an ‘ostrich’
approach of failing to institute routine safety procedures in
EEO
4
compliance with generally recognized industry standards of
care.” /d.
The parties filed an agreed motion to certify an inter-
locutory appeal under 28 U.S.C. § 1292(b) on the question
whether the failure to warn a passenger on an international
flight about deep-vein thrombosis constitutes an “accident”
under the Warsaw Convention. For purposes of this appeal,
Continental concedes that warning about the risk of deep-vein
thrombosis was standard in the airline industry.
The Fifth Circuit reversed the district court. Blansett v.
Cont 'l Airlines, Inc., 379 F.3d 177, 182 (Sth Cir. 2004). The
court of appeals concluded that Continental’s failure to warn
of the risk of deep—vein thrombosis was not “unusual or
unexpected,” because warnings were not required by the
Federal Aviation Administration. /d. As a result, the court
held that Shawn Blansett’s injury did not constitute an
“accident” under the Warsaw Convention.
REASONS FOR GRANTING WRIT
This Court should grant certiorari because the issue is
important throughout the world. International air travel
affects millions of passengers and scores of airlines. That is
why so many nations have signed the Warsaw Convention.
Yet courts have not definitively settled whether the failure to
warn about the risk of deep-vein thrombosis constitutes an
“accident” within the meaning of the Warsaw Convention.
The highest courts of England and Australia have recently
agreed to consider this issue. See Deep Vein Thrombosis &
Air Travel Group Litig., [2003] EWCA Civ. 1005 (July 3,
2003) (leave to appeal granted); Qantas Ltd. v. Povey, [2003]
_ VSCA 227, 2003 WL 23000692 (Dec. 23, 2003) (special
leave to appeal granted). This Court should decide it, because
courts throughout the world have traditionally looked to this
Court for guidance about the definition of “accident” under
the Warsaw Convention.
5
The risk of deep-vein thrombosis is present in all lengthy
airplane flights. As a result, many airlines warn of the risk of
deep-vein thrombosis and advise their passengers how to
minimize the risk. The Federal Aviation Administration’s
website discusses the danger and recommends warnings in
great detail. Because not all airlines have provided warnings,
however, litigation by injured passengers and their families is
pending in other nations and in a multi-district proceeding
in California.
The Fifth Circuit’s decision, however, distorts the analysis.
The court has created a tension between the policies of the
FAA and those of other nations. The court held that an
airline cannot be liable under the Warsaw Convention for a
failure’ to warn, provided the airline complied with the
minimum warnings required by the FAA. Tying liability to
local standards conflicts with the power of other nations to set
higher standards for flights arriving in or departing from their
territories. If other nations require warnings, but the FAA
does not, has there been an “accident”? The result is likely to
be a Balkanization of the application of the Saks definition of
“accident,” which would contradict a major purpose of the
Warsaw Convention—uniformity. To ensure a uniform defi-
nition, this Court should resolve this issue.
I. THE FIFTH CIRCUIT HAS DECIDED AN
IMPORTANT QUESTION OF FEDERAL LAW
THAT HAS NOT BEEN, BUT SHOULD BE,
SETTLED BY THIS COURT.
Although the Court addressed the definition of “accident”
under the Warsaw Convention just last term, this precise issue
was not resolved. The Court noted that cases alleging a
failure to warn of the risk of deep—vein thrombosis have
“substantial factual distinctions” from the allegations at issue
in Olympic Airways v. Husain, 540 U.S. 644, 124 S. Ct. 1221,
1229 n.9 (2004). Accordingly, except for the Fifth Cir-
6
cuit’s decision in the present case, this issue remains open
in America.
A. A uniform interpretation of “accident” under
the Warsaw Convention is important to inter-
national airlines, their passengers, and courts.
A uniform interpretation of “accident” under the Warsaw
Convention would assist the airline industry. It also could
resolve many cases pending around the nation and provide
guidance to courts around the world.
The Warsaw Convention provides the exclusive cause of
action and remedy for those suffering an accident on an
international flight. E/ Al Israel Airlines, Ltd. v. Tsui Yuan
Tseng, 525 U.S. 155, 177 (1999). To prevail under article 17
of the Warsaw Convention, a plaintiff must establish that: (1)
an accident (2) took place on board the aircraft or in the
course of operations of embarking or disembarking (3) which
caused (4) an injury. Eastern Airlines, Inc. v. Floyd, 499 U.S.
530, 535-36 (1991). An “accident” is defined as “[a]n
unexpected or unusual event or happening that is external to
the passenger.” Air France v. Saks, 470 U.S. 392, 405
(1985). The definition is to be flexibly applied. Jd. When-
ever there is contradictory evidence, the trier_of fact deter-
mines whether an “accident” caused the injury. /d.
All international long-haul passengers are subject to the
risk of developing deep—vein thrombosis, not just those with
known risk factors. A peer-reviewed medical study found
that as many as 10% of passengers with no history of
thromboembolic problems can develop symptoms of deep-
vein thrombosis during an eight-hour flight. Shawn Blansett,
only thirty-six years old at the time of his stroke, was one
of these.
The dangers of deep-vein thrombosis have long been
known by the International Air Transport Association
(“IATA”), which is the international commercial aviation
eS
7 \
industry’s trade organization of approximately 275 members,
including Continental. In 1986, the IATA included warnings
about the risk of deep-vein thrombosis in its medical manual
distributed to members. The IATA manual mentioned that
“(prolonged immobilization on long flights has a noticeable
effect on the circulation, especially in the lower limbs.”
Because “the opportunity for physical exercise is very
limited,” since aircraft “aisles will be blocked most of the
time by cabin personnel serving passengers,” IATA recom-
mended that its members encourage their passengers to “take
every Opportunity to exercise” especially “during interme-
diate stops.” IATA’s recommendations, however, went even
further: “During flight, passengers should be encouraged to
move their feet frequently and exercise the muscles of the
legs. When possible, to minimize ankle and feet swelling, the
passengers should stand and walk the aisles for a few minutes
every hour or so and to elevate the feet as high as possible
while sitting.”
Several months before Shawn Blansett’s flight in 2001, the
IATA instructed carriers to inform travelers of the risks of
deep-vein thrombosis when the reservation is booked. The
IATA also advised carriers to remind their passengers—just
before boarding and again while on board—to drink sufficient
fluids, wear loose-fitting clothes, avoid smoking and
alcoholic beverages, and perform physical exercises in their
seats (particularly for their feet and legs).
In accordance with the IATA recommendations, many
major international air carriers warned their passengers of the
risk of deep-vein thrombosis. These included Air Canada,
Air New Zealand, All Nippon Airways, American Airlines,
British Airways, Emirates Airlines, Japan Airlines, Northwest
Airlines, Qantas, and Singapore Airlines. But Continental did
not. As a result, many passengers received warnings and
avoided deep-vein thrombosis, while others such as Shawn
Blansett did not. Those who were injured as a result of not
receiving warnings have initiated litigation around the world.
— — =
8
Given the huge increase in international air travel, both
passengers and carriers have an interest in seeing this issue
resolved. The courts where litigation is pending also need
guidance. This Court should resolve this question.
B. The issue implicates important policies of the
Federal Aviation Administration, but the Fifth
Circuit’s decision needlessly creates tension
with the policies of other nations.
The Federal Aviation Administration’s website mentions the
risk of deep-vein thrombosis and recommends that passengers
be warned about it. The website of the FAA’s Office of
Aerospace Medicine contains multiple links to warnings
about deep-vein thrombosis. See www.cami.jccbi.gov/
aam-400/PassengerHandS.htm#Specifictopics. These links, in
turn, discuss preventative measures like those the IATA had
recommended prior to Shawn Blansett’s injury. See www.
cami.jccbi.gov/aam-400A/FASMB/FAS200101/DVT.htm.
Nevertheless, the Fifth Circuit has expressed concern about
the tension between the recommended precautions against
deep—vein thrombosis and the risk of injury to passengers
wandering about the cabin. This led the Fifth Circuit in
another case to hold that claims of a failure to warn against
the risk of deep—vein thrombosis were preempted by the FAA
regulations. Witty v. Delta Airlines, Inc., 366 F.3d 380, 385
(Sth Cir. 2004). That case was not decided under the Warsaw
Convention, because it involved only a domestic flight. But it
demonstrates the importance of this issue to airlines and
_
> The federal courts may take judicial notice on appeal of matters pub-
lished on the official website of a federal governmental entity or agency.
E.g., Cellco P’ship v. FCC, 357 F.3d 88, 93. 96 (D.C. Cir. 2004);
Laborers’ Pension Fund v. Blackmore Sewer Constr., Inc., 298 F.3d 600,
607 (7th Cir. 2092).
ee a, ae Pe eee ee ee eS ee eee
9
passengers. Deciding this issue could reconcile that per-
ceived tension within the FAA’s policies.
Moreover, the Fifth Circuit’s decision has needlessly
created a tension between the policies of our government and
those of other nations. The Fifth Circuit has limited the
definition of “accident”—what is “unusual or unexpected”—
to whatever is required by the FAA at a particular point in
history. Its logic seems to grant the FAA implied power to
define the requirements of the Warsaw Convention. While
the FAA certainly can establish minimum standards for
international flights arriving in or departing from America, it
should not have the power to prevent other nations from
requiring higher standards for their flights if they so choose.
But the Fifth Circuit’s hoiding says that an airline cannot be
liable under the Warsaw Convention, provided it complied
with the minimum warnings mandated only by the FAA in
America. Thus, even if British law required a warning about
deep-vein thrombosis, the failure to warn an American
passenger would not be actionable under the Warsaw Con-
vention. And even a British passenger on a flight to or from
America could not recover in an American court. This
suggests that the Fifth Circuit’s opinion may lead to different
applications of the definition of “accident” to warnings claims
in different nations. Tying liability standards to local law is
precisely opposite the intention behind the drafting of the
Warsaw Convention.
C. Although the House of Lords and the High
Court of Australia have now agreed to address
this issue, those courts have fraditionally
welcomed this Court’s guidance.
In deciding what constituted an “accident” in Olympic
Airways v. Husain, this Court was “hesitant” to follow “the
opinions of intermediate appellate courts” of other signatories
to the Warsaw Convention, because their courts of last resort
ee
10
had not yet spoken. 124 S. Ct. at 1229 n.9._ Recently,
however, both the House of Lords and the High Court of
Australia have decided to address whether the failure to warn
of the risk of deep—vein thrombosis is an “accident” under the
Warsaw Convention.’
Although this Court could await the outcome of those
decisions, it should not. This Court’s decisions have led the
analysis of what is an “accident” under the Warsaw Con-
vention. The Saks definition of “accident” has been the
touchstone for England, Australia, Canada, and Germany in
their cases under the Warsaw Convention. Accordingly,
those courts would likely welcome the guidance of this Court
in resolving this issue, which could restore uniformity to the
definition under the treaty.
D. Resolving this issue also would resolve multi-
district litigation.
Moreover, the issue whether an airline’s failure to warn
about the risks of deep—vein thrombosis is currently the
subject of multi-district litigation pending in the Northern
District of California. A decision on this issue would resolve
that litigation with regard to the failure-to-warn claims.
Il. THE FIFTH CIRCUIT’S INTERPRETATION OF
“ACCIDENT” IS PROBABLY INCORRECT.
The Fifth Circuit held that the failure to warn of the risk of
deep-vein thrombosis was not an “accident” under the
* See Deep Vein Thrombosis & Air Travel Group Litig., [2003] EWCA
Civ. 1005 (July 3, 2003) (leave to appeal granted, Minutes and Order
Paper—Minutes of Proceedings, House of Lords, July 14, 2004 (avail-
able at www.publications.parliament.uk/pa/ld200304/minutes/0407 | 4/
Idminute.htm)); Qantas Lid. v. Povey, [2003] VSCA 227, 2003 WL
23000692 (Dec. 23, 2003) (special leave to appeal granted, Melbourne |
Sept. 10, 2004 (available at www.hcourt.gov.au/registry/slresults/10-09-
04M.htm)).
11
Warsaw Convention. It reasoned that the failure to warn was
not unexpected or unusual, because Continental complied
with the FAA’s mandated warnings. Blansett, 379 F.3d at
182. That reasoning is questionable at best. Its logic
suggests that the FAA’s regulations impliedly govern
international air flights having no relationship to America
and, thus, sets up a potential tug of war between what
international governments might require under the Warsaw
Convention and the minimum warnings mandated by the
FAA. See I.,B., supra.
A better test is whether the external cause of the accident
was unexpected or unusual to the passenger, for that test fits
the purpose of the Warsaw Convention, which was to expand
liability in exchange for limiting damages. E.g., El-Al Israel
Airlines, Ltd. v. Tsui Yuan Tseng, 505 U.S. 155, 170-71
(1999). That test seems to flow from this Court’s logic in
Olympic Airways v. Husain. There, this Court suggested that
the presence of an industry standard was critical to the
existence of an “accident.” Although this Court did not have
to reach that precise question because of the procedural
posture of Husain, 124 S. Ct. at 1227, it appears that the
Court would treat the failure to follow an industry standard as
an unexpected or unusual event:
Suppose that a passenger on a flight inexplicably
collapses and stops breathing and that a medical doctor
informs the flight crew that the passenger’s life could be
saved only if the plane lands within one hour. Suppose
further that it is industry standard and airline policy to
divert a flight to the nearest airport when a passenger
otherwise faces imminent death. If the plane is within
30 minutes of a suitable airport, but the crew chooses to
continue its cross-country flight, “[t]he notion that this is
not an unusual event is staggering.”
Id. at 1229 (quoting McCaskey v. Cont’l Airlines, Inc., 159 F.
Supp. 2d 562, 574 (S.D. Tex. 2001)).
12
Thus, according to Olympic Airways v. Husain, the failure
to follow an industry standard and airline policy can be an
unusual event, which constitutes an “accident” when that
failure is a link in the causal chain of the ultimate injury.
This is as it should be. Passengers should have the right to
expect compliance with all industry standards. While they
cannot contend that the standard should be improved, since
that would impermissibly inject negligence into the case, they
should be able to demonstrate that the failure to comply with
an industry standard is “unusual and unexpected.” Otherwise,
the airline has no incentive to prevent injuries that can easily
be prevented. Here, a link in the chain causing Shawn
Blansett’s stroke was Continental’s unexpected failure to
follow the industry standard of warning about the risks of
deep-vein thrombosis, when Continental knew the risk, but
Shawn did not.
The presence of an industry standard has led this Court to
reject the reasoning of England’s and Australia’s intermediate
appellate courts. See Olympic Airways v. Husain, 124 S. Ct.
at 1229 n.9 (“To the extent that the precise reasoning used by
the courts in Deep Vein Thrombosis and Air Travel Group
Litigation and Povey is inconsistent with our reasoning, we
reject the analysis of those cases for the reasons stated in the
body of this opinion.”). Moreover, even the opinions of those
intermediate appellate courts suggested that they might have
reached a different result if they had been presented with an
established industry standard, as in Blansett. See Deep Vein
Thrombosis & Air Travel Group Litig., [2003] EWCA Civ.
1005, at | 46 (July 3, 2003) (leave to appeal granted) (“If this
was contrary to standard practice, or even the airline’s
internal practice, then it is perhaps arguable that there
occurred an unusual or unexpected ‘event.’”). Likewise, the
Povey decision distinguished Blansett on the ground that the
latter has an industry standard, while Povey did not. See
Qantas Ltd. v. Povey, [2003] VSCA 227, § 197, 2003
F
:
:
13 ;
WL 23000692, 4 197 (Dec. 23, — (special leave to ap-
peal granted).
Because the IATA and the majority of international air
carriers have set a standard for warning about deep-vein
thrombosis—and Continental does not dispute the standard
for purposes of this appeal—Continental’s failure to abide by
that standard was unusual or unexpected to the industry, as
well as to its passengers such as Shawn Blansett. See Fulop
v. Malev Hungarian Airlines, 175 F. Supp. 2d 651, 665
(S.D.N.Y. 2001) (“Any major deviation from a standard
articulated in recognized practices and procedures repre-
sents the exceptional case—the unusual or unexpected —
happening.”). When that deviation causes an injury on board
the aircraft, it should constitute an “accident” under the
Warsaw Convention. Therefore, the Fifth Circuit’s analysis
appears incorrect.
CONCLUSION
For these reasons, a writ of certiorari should issue to
review the judgment and opinion of the Fifth Circuit.
Respectfully submitted,
KENNETH T. FIBICH ROGER D. TOWNSEND *
FIBICH HAMPTON LEEBRON JENNIFER R. TILLISON
& GARTH, LLP ALEXANDER DUBOSE JONES
1401 McKinney, Ste 1800 & TOWNSEND LLP
Houston, Texas 77010 1844 Harvard Street
(713) 751-0025 Houston, Texas 77008
A. CRAIG EILAND (ria) sar eae
2423 Market Street Counsel for Petitioners
Galveston, Texas 77550
(409) 763-3260
* Counsel of Record
APPENDICES
la
APPENDIX A .
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
[Filed Jul. 21, 2004]
Docket No. 03-40545
MICHAEL SHAWN BLANSETT; MODESTA N. BLANSETT,
AND AS NEXT FRIEND OF MCKENNA BLANSETT, AS NEXT
FRIEND OF BLAKE BLANSETT, INDIVIDUALLY AND MINORS.
Plaintiffs-Appellees
Cross-Appellants,
Vv.
CONTINENTAL AIRLINES, INC..,
Defendants-Appellant
Cross-Appellee.
Sept. 4, 2003 Argued
May 24 2004 Argued
July 21, 2004 Decided
Before SMITH and DENNIS, Circuit Judges, and LYNN, |
District Judge.
OPINION
e JERRY E. SMITH, Circuit Judge:
I.
On June 18, 2001 plaintiff Michael “Shawn” Blansett
traveled from Houston, Texas, to London, England on a flight
operated by Continental Airlines, Inc. (“Continental”).
During flight, he suffered an episode of deep vein thrombosis
' District Judge of the Northern District of Texas, sitting by designation.
2a
—_
(“DVT”), resulting in a cerebral stroke that left him
permanently debilitated. DVT involves the clotting of blood
in the extremities and creates a threat of death or disability if
a clot migrates to the lungs or other vital organs.
The likelihood of a DVT injury is heightened by the
pressurized conditions aboard an airliner, especially during
long flights, though experts believe that passengers may
undertake precautionary measures to reduce the risk. Many
international carriers have added DVT warnings to their
battery of pre-flight instructions to passengers, though at the
time of Blansett’s flight, Continental had not. Federal
regulations do not require that air carriers issue any such
warnings, though at the time of Blansett’s flight, the
International Air Transport Association, a trade association,
had recommended that airlines implement a long schedule of
instructions to passengers on the risks of DVT.
Blansett and his close relations sued, Continental, alleging
that it was liable for Blansett’s injury under article 17 of the
Warsaw Convention, to which the United States is a
signatory. Under article 17, an airline is responsible for
injuries to passengers on an international flight where the
injury results from an “accident.” The district court denied
Continental’s motion to dismiss under Fed. R. Civ. P.
12(b)(6), concluding that if Continental’s failure to provide
DVT warnings and instructions was an “unreasonable
deviation from industry standards,” it would be an “accident”
under the Convention. We now consider Continental’s
interlocutory appeal, pursuant to 28 U.S.C. § 1292(b), on the
issue of article 17°s proper meaning and application.
We review a rule 12(b)(6) ruling de novo. See, e.g., Lowrey
v. Texas A&M Univ. Sys., 117 F.3d 242, 246 (Sth Cir.1997).
We assume the truth of all pleaded facts and review purely
legal issues de nove. Concluding that Continental’s failure to
3a
provide DVT warnings and instructions could not have
constituted an “accident” under article 17, we reverse and
remand.
Il.
Article 17 imposes liability on an air carrier for a pass-
enger’s death or bodily injury in connection with an inter-
national flight. It provides in relevant part:
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. 3000, 1934 WL 29042.
The pertinent question, as we have said, is whether
Continental’s failure to provide warnings and instructions
concerning DVT could have constituted a covered “accident”
under article 17. Because the Convention was written in
French and against the background of French law, the
Supreme Court has looked to French law to interpret the
meaning of “accident” in article 17. Air France v. Saks, 470
U.S. 392, 400 (1985). In French law, “accident” is usually
given to mean a “fortuitous, unexpected, unusual, or
unintended event.” Jd. The Court noted, accordingly, that an
accident under article 17 is an “unexpected or unusual
event... .” /d.
The Convention speaks of an “accident which caused” an
injury rather than an accident that is an injury. Jd. at 398, 105
S. Ct. 1338. Accordingly, a qualifying “unusual or
unexpected event” must be distinct from “the passenger’s
own internal reaction to the usual, normal, and expected
operation of the aircraft.” Jd. at 405, 406, 105 S. Ct. 1338. For
instance, where normal pressurization of the aircraft hull
4a
caused hearing damages to an unusually sensitive passenger,
the occurrence of the injury was not an “accident,” however
unusual or unexpected. /d. An “unusual or unexpected event”
that qualifies under article 17 must be part of the “chain of
causes” leading to an injury. /d. at 406, 105 S. Ct. 1338. So,
it need not account wholly for the injury but must have been a
significant part of the cause.
In Husain v. Olympic Airways, 124 S. Ct. 1221, 1227-30
(2004), the Court concluded that, under some circumstances,
an “accident” may constitute an omission or refusal to act. In
Husain, a passenger with an allergy to smoke asked to be
reseated when smoke from another section of the plane
impinged his seat in a nominally smoke-free area. The crew
refused three times to reseat him, even though other seats
were available, and as a result of the smoke, he suffered aa
allergic reaction and died. The Court held that the airline’s
refusals constituted a qualifying “unusual or unexpected
event” under article 17. /d. at 1230.
Il.
The situation in the instant case differs markedly from that
in Husain. Here, no request was made of the airline; the flight
staff was entirely passive. The Supreme Court noted that facts
similar to those here are at least distinguishable from those in
Husain. Justice Scalia’s dissent, id. at 1230, 1231 (Scalia, J.,
dissenting), pointed to decisions in several foreign juris-
dictions concluding that a failure to warn and instruct of DVT
risks is not an “event” under article 17. The Court stated that
the failure to give warning in the foreign Warsaw Convention
cases involving DVT, as distinguished from a specific refusal
to lend requested aid in Husain, was enough to prevent
conflict between them. /d. at 1229 n. 9.
That is to say, the Court specifically left open the question
now before us, even as it supplied the general rules for the
detection of qualifying “accidents” under article 17. In this
Sa
case, as the Court did in Husain, we consider whether certain
omissions may constitute an “accident” under article 17.
The district court held, “An airline’s violation of an Indus-
try standard of care, alone, can be an ‘unusual or unexpected
event or happening that is external to the passenger,” ... and
thus an ‘accident.’” Blansett v. Cont’ Airlines, Inc., 246 F.
Supp. 2d 596, 601 (S.D. Tex. 2002). Accordingly, the court
would have left it to the jury to determine whether
Continental’s failure to provide the suggested DVT warnings
was an “unexpected and unreasonable departure from routine
industry procedure,” and thus necessarily an accident under
the Convention. /d. at 602. In so holding, the court wished to
compel airlines to “keep up with reasonable and practical
industry practices.” /d. at 601.
In allowing a finding of an “unreasonable” departure from
“airline standards” to establish an unusual and unexpected
event, the district court’s approach resembles that of the
Ninth Circuit, which held, in its iteration of Husain that
preceded the Supreme Court’s review, that “[t}he 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 substantially minimize the risk
and implementing these alternatives would not interfere with
the normal, expected operation of the airplane.” Husain
v. Olympic Airways, 316 F.3d 829, 837 (9th Cir.2002)
(emphasis added), aff'd, 124 S. Ct. 1221 (2004).2 The latter
part of this formulation echoes formulations of the law of
negligence in torts. Although the Supreme Court ultimately
affirmed that Olympic Airways’ refusal to aid the plaintiff
See also F: ulop v. Malev Hungarian Airlines, 175 F. Supp. 2d 651,
665 (S.D.N.Y. 2001) (“Any major deviation from a standard articulated in
recognized practices and procedures represents the exceptional case—the
unusual or unexpected happening.”)
6a
was an “accident,” the Court declined to base its analysis on
language of reasonableness or unreasonableness.
Likewise, we reject the district court’s use of an “unrea-
sonable departure” approach here. Inasmuch as the court
called for the consideration whether Continental’s conduct
was an accident merely because it was “unreasonable,” it was
in error. ;
The Blansetts accept that the district court’s choice of
language was inapt, but they argue nonetheless that they can
demonstrate that Continental’s failure to give DVT warnings
was an “unusual and unexpected event” merely because it
was departure from standard practice within the airline
industry. For purposes of this appeal, we assume the truth of
the Blansetts’ allegation that Continental’s failure to provide
DVT warnings as part of its battery of pre-flight instructions
is a departure from an “industry standard.”
As we have said, the Supreme Court has held that some
kinds of inaction can constitute an “accident.” In Husain,
specific refusals to render requested aid constituted an
“unexpected or unusual event.” We take note also of the
Court’s mention of the example proffered by the district
judge a quo in another case, in which he speculated that it
would be an “unusual and unexpected event” if an air crew
decided not to divert a flight to save the life of a passenger
who suddenly became ill. Husain, 124 S. Ct. at 1229 (citing
McCaskey v. Cont’l Airlines, Inc., 159 F. Supp. 2d 562, 574
(S.D. Tex. 2001)). In Husain’ and the McCaskey hypo-
° As the United Kingdom Court of Appeals observed with respect to
Husain,
“(t]he refusal of the flight attendant to move Dr. Hanson cannot
properly be considered mere inertia, or a non-event. It was a refusal
to provide an alternative seat which formed part of a more complex
incident, whereby Dr. Hanson was exposed to smoke in circum-
stances that can properly be described as unusual and unexpected.”
Deep Vein Thrombosis & Air Travel Litig., 2003 WL 21353471,
| :
Ta
thetical, unusual circumstances existed to elevate the willing
inaction of airline personnel from mere inertia—from a non-
event—to an event both “unexpected and unusual.’
No such circumstances were thrust on the flight crew in the
present case, and their compliance with the regular policy of
their airline was hardly unexpected. Rather, the Blansetts
allege that the “unexpected” nature of the alleged event arose
not from the choices of the flight attendants, but from the
Continental policymakers who decided not to mandate DVT
warnings on Continental flights.
The Blansetts reason that though this decision occurred at a
time and place distant from Blansett’s flight, article 17 is to
be “applied flexibly” after “assessment of all the circum-
stances surrounding a passenger’s injuries. . . .” See Saks, 470
U.S. at 405. It is appropriate to consider the deliberate
perpetuation of company-wide policies as potential “events”
within the context of the individual flights in which they are
given effect. We may accordingly compare the instructions
given on Continental flights with those customarily given
within the airline industry generally, in gauging whether Con-
tinental’s deliberate choice was “unusual and unexpected.”
Again, we assume, for purposes of this appeal, that a
failure to warn of DVT is a departure from “an industry
standard of care.”° But, we will not depart from the demon-
{ 50 (emphasis added); see also Qantas Ltd. v. Povey, [2003] VSCA
227, | 17, 2003 WL 23000692, 4 17 (Dec. 23, 2003).
* judge Dennis disagrees with the mere inertia/inertia plus unusual
circumstances dichotomy drawn by the majority because: (1) it is not
necessary to the resolution of this case, (2) the Supreme Court left-the
issue open in Husain, and (3) the potential ramifications of distinguishing
between different types of inaction are not clear.
* As the district court noted, he relied on the testimony of an expert
witness, Farrol Kahn, who was of the opinion that failure to provide DVT
warnings departed from industry custom. McCaskey, 246 F. Supp. 2d at
601. Kahn noted that at the time of Blansett’s injury, five of the ten most-
8a
strated will of the Supreme Court by creating a per se rule
that any departure from an industry standard of care must be
an “accident.” In Husain, 124 S.Ct. at 1230, the Court again
emphasized that the appropriate test for article 17’s
application under every set of relevant facts is whether there
was an “unexpected or unusual event.” Some departures from
an “industry standard” might be qualifying accidents under
Article 17, and some may not.
Continental’s failure to warn of DVT was not an “unusual
or unexpected event” and not a qualifying “accident.” Though
many international carriers in 2001 included DVT warnings, -
it is undisputed that many did not. Moreover, Continental’s
battery of warnings was in accord with the policies of the
Federal Aviation Administration (“FAA”), which prescribes
what warnings airlines should issue to passengers.
In Witty v. Delta Air Lines, Inc., 366 F.3d 380 (Sth Cir.
2004), we held that the warnings reasonably required to be
made by an airline are those enumerated by the FAA, and no
others.° We noted that the balance of warnings required by
the government is the product of its careful judgment. For
example, “Any warning that passengers should not stay in
their seats, but should instead move about to prevent DVT,
would necessarily conflict with any federal determination
that, all things considered, passengers are safer in their seats.”
Id. at 385. We noted also that the courts’ requirement of other
warnings would dilute the impact of warnings that are
required by the FAA.
traveled international airlines provided information and instructions to
passengers about DVT. /d. at 602.
° “[FJederal regulations do not require warnings to passengers about
the risks of DVT or methods for preventing this condition.” Witty,
366 F.3d at 385. Therefore, we concluded that in a negligence action,
an airline “cannot be held liable for failing to provide warnings or in-
structions.” /d.
9a
Though Witty does not decide this case. because its lesson
directly applies only to negligence causes of action. it is
nonetheless instructive. It was not an unexpected or unusual
decision for Continental merely to cleave to the exclusive list
of warnings required of it by the agency that has regulatory
jurisdiction over its flights.
Ultimately, no jury may be permitted to find that Con-
tinental’s failure to warn of DVT constituted an “accident”
under article 17. Continental’s policy was far from unique in
2001 and was fully in accord with the expectations of the
FAA. Its procedures were neither unexpected nor unusual.
The order appealed from is REVERSED. and this matter is
REMANDED.
10a
APPENDIX B
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
[Filed Nov. 18, 2002]
Civil Action No. G-02-061
MICHAEL “SHAWN” BLANSETT AND MODESTA N. BLANSETT,
Individually and as Next Friend OF MCKENNA BLANSETT and
BLAKE BLANSETT, Minors
Plaintiffs,
V.
CONTINENTAL AIRLINES, INC.
Defendant.
ORDER DENYING DEFENDANT CONTINENTAL
AIRLINES, INC.’°S MOTION TO DISMISS PLAINTIFFS’
CLAIMS BASED ON FAILURE TO WARN AND
ORDERING PLAINTIFFS TO RESPOND
TO DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT ON CLAIMS BASED ON
FAILURE TO WARN
Plaintiffs Michael “Shawn” Blansett and Modesta Blansett
(collectively “the Blansetts”) bring this lawsuit against
Defendant Continental Airlines, Inc. (“Continental”) seeking
to recover damages under the Warsaw Convention’ for
injuries allegedly sustained by Shawn Blansett while riding as
a passenger aboard a Continental Airlines flight from
' Convention for the Unification of Certain Rules Relating to Inter-
national Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, 3014 T-S.
No. 876 (1934), note following 49 U.S.C. § 40105.
lla
Houston, Texas to London, England on June 18, 2001.
Specifically, Plaintiffs aver that Shawn Blansett suffered a
debilitating cerebral stroke approximately one hour before
arriving in London that was ostensibly caused by a blood clot
that formed during the lengthy flight, a phenomenon typically
referred to as “Deep Venous Thrombosis Syndrome” or
“Economy Class Syndrome.” Plaintiffs further allege that
Continental never warned or advised Shawn Blansett of the
likelihood of developing a blood clot in the lower extremities,
nor allowed an onboard physician to examine or treat Shawn
Blansett after he became visibly ill, nor consulted with any
third-party medical advice service regarding Shawn Blan-
sett’s condition, nor relayed critical information to the
London ambulance and hospital personnel that eventually
treated Shawn Blansett. As a result of this stroke, Plaintiffs
claim that 36-year-old Shawn Blansett, who was once an
able-bodied husband, father and corporate executive earning a
six-figure salary, is now bound to a wheelchair, unable to
walk or talk normally, or even take care of his own basic
needs. On the basis of these events, Plaintiffs filed suit in this
court on January 25, 2002.
On July 19, 2002, Continental filed a Motion for Judgment
as a Matter of Law on Plaintiffs’ Claims Based on Failure to
Warn.” Continental’s Motion asks this Court to dismiss the
? In their Original Complaint, filed on January 25, 2002, Plaintiffs
alleged that “[a]n ‘accident,’ meaning un unexpected or unusual condition
external to plaintiff, occurred when Continental failed to warn, advise
and/oy take adequate precautions to inform about and/or prevent Deep
Venous Thrombosis (‘DVT’) on its international flight. This action
and/or inaction constituted an ‘accident’ under the [Warsaw] Convention
because it was an unreasonable application of routine procedures or
operations, was unexpected or unusual, was external to- the plaintiff, and
was not caused solely by plaintiff's own conduct or physical condition.
Moreover, Continental had actual knowledge of the risk of contracting
DVT during lengthy flights and failed to warn, advise and/or take
adequate precautions to protect its passengers.” Pls.’ Original Comp. at
12a
Blansetts’ failure to warn claims under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, or to grant partial summary
judgment against the Blansetts on these claims. On October
15, 2002, the Blansetts filed Plaintiffs’ First Amended
Complaint, revising somewhat their failure-to-warn claims.’
Also on October 15, 2002, the Blansetts timely responded to
Continental’s Motion for Judgment as a Matter of Law on
Plaintiffs’ Claims Based on Failure to Warn. Continental
requested and was granted leave to file a Reply to Plaintiffs’
Response. Continental filed its Reply on October 18, 2002.
For the reasons articulated below, Continental’s Motion to
Dismiss Plaintiffs’ Claims Based on Failure to Warn is
DENIED, and Plaintiffs are ORDERED to respond within
fifteen (15) days of this Order to Continental’s alternative
Motion for Partial Summary Judgment on Plaintiffs’ Claims
Based on Failure to Warn.
419. In the next paragraph, Plaintiffs again alleged that “[b]y failing to
warn . . . Continental carried out its routine procedures in an unreasonable
manner.” /d. at $20.
* Plaintiffs’ First Amended Complaint changes “unexpected or unusual
condition” in paragraph 19 to “unexpected or unusual event or happen-
ing,” and adds a paragraph elaborating on the failure-to-warn claims. See
Pls.’ First Am. Comp. at 419, 20. The added paragraph states that “[u]pon
information and belief, it is the custom, rule and/or procedure among
international long-haul air carriers to warn, advise and/or take adequate
precautions to inform passengers of the risk of DVT. Accordingly, an
‘accident’ as that term is understood under the Warsaw Convention
occurred when Continental failed to warn, advise and/or take adequate
precautions to inform plaintiff of the risk of contracting DVT because
such failure was an abnormal operation of the carrier and/or an unrea-
sonable application of routine procedures and thereby unusual and
unexpected.” /d. at 420.
l3a
I.
A. Motion to Dismiss Under Rule 12(b)(6)
A party is entitled to dismissal under Fed. R. Civ. P.
12(b)(6) when an opposing party fails to state a claim upon
which relief may be granted. When considering a 12(b)(6)
motion, the Court accepts as true all well-pleaded allegations
in the complaint, and views them in a light most favorable to
the plaintiff. See Malina v. Gonzales, 994 F.2d 1121. 1125
(Sth Cir 1993). “However, conclusory allegations or legal
conclusions masquerading as factual conclusions will not
suffice to prevent a motion to dismiss.” Fernandez-Montes v.
Allied Pilots Ass'n, 987 F.2d 278, 284 (Sth Cir. 1993).
Unlike a motion for summary judgment, a motion to dismiss
Should be granted only when it appears without a doubt that
the plaintiff can prove no set of facts in support of his claims
that would entitle him to relief. See Conley v. Gibson, 355
U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957);
Home Capital Collateral, Inc. v. FDIC, 96 F.3d 760. 764 (Sth
Cir. 1996).
As this Court has already held, the Warsaw Convention.
“an international treaty governing ‘all international trans-
portation of persons, baggage, or goods performed by aircraft
for hire,”” provides the exclusive cause of action and remedy
for the Blansetts’ claims against Continental. See Blansett v.
Continental Airlines, Inc., 203 F. Supp. 2d 736, 744 (S.D.
Tex. 2002) (Kent, J.) (quoting El A/ Israel Airlines, Ltd. vy.
Tseng, 525 U.S. 155, 162, 119 S. Ct. 662, 668, 142 L. Ed. 2d
576 (1999)). In order to prevail on a claim under the Warsaw
Convention, a plaintiff must prove that (1) an “accident” (2)
“took place on board the aircraft or in the course of opera-
tions of embarking or disembarking,” (3) which “caused” (4)
an “injury.” McCaskey v. Continental Airlines, Inc., 159 F.
Supp. 2d 562, 569 (S.D. Tex. 2001) (Kent, J.) (citing Eastern
Airlines, Inc. v. Floyd, 499 U.S. 530, 535-36, 111 S. Ct. 1489.
1494, 113 L. Ed. 2d 569 (1991)). In the Motion now before
l4a
the Court, Continental seeks dismissal of the Blansetts’ claim
that an accident occurred when Continental failed to warn
passengers on the transatlantic flight of the risk of developing
Deep Venous Thrombosis (“DVT”).
The essential predicate of carrier liability under the
Warsaw Convention is the occurrence of an “accident.”
McCaskey, 159 F. Supp. 2d at 570 (citing Wallace v. Korean
Air, 214 F.3d 293, 297 (2d Cir. 2000), cert. denied, 531 U.S.
1144, 121 S. Ct. 1079, 148 L. Ed. 2d 955 (2001). For
purposes of the Warsaw Convention, an accident is defined as
“an unusual or unexpected event or happening that is external
to the passenger.” Air France v. Saks, 470 U.S. 392, 405, 105
S. Ct. 1338, 1345, 84 L. Ed. 2d 289 (1985). Although the
Supreme Court instructed that this definition should be
“flexibly applied after assessment of all the circumstances
surrounding a passenger’s injuries,” it cautioned that when an
injury “indisputably results from the passenger’s own internal
reaction to the usual, normal, and expected operation of the
aircraft, it has not been caused by an accident....” Jd. at
405-06, 105 S. Ct. at 1345; see, e.g., Abramson v. Japan
Airlines Co., 739 F.2d 130, 133 (3d Cir. 1984) (sitting in an
airline seat during a normal flight which aggravated the
passenger’s hiatal hernia is not an “accident”); Scherer v. Pan
American World Airways, Inc., 387 N.Y.S.2d 580, 581 (App.
Div. 1976) (sitting in an airline seat during a normal flight
which aggravated the passenger’s thrombophlebitis is not an
“accident”) (both cited with approval in Saks, 470 US. at
405, 105 S. Ct. at 1345).
Guided by Saks, many courts have attempted to draw the
line between what is an accident and what is not. Finding the
appropriate line has become even more critical since the
Supreme Court held that the Warsaw Convention provides the .
exclusive remedy for injuries within its scope. See Tseng, ;
525 U.S. at 176, 119 S. Ct. at 675. Thus, if a passenger is
injured on a flight that falls under the Warsaw Convention,
lSa
and a court holds that the injury was not caused by an
“accident,” the passenger cannot recover. See id.
Continental argues that sitting in an airplane during a
normal flight, which causes a passenger to develop DVT,
cannot be an accident. Cf Abramson, 739 F.2d at 133 (sitting
in an airline seat during a normal flight which aggravated the
passenger’s hiatal hernia is not an accident); Margrave y.
British Airways, 643 F. Supp. 510, 511 (S.D.N.Y. 1986)
(sitting in an airline seat for a prolonged period of time which
caused the passenger’s back injury is not an accident, but the
bomb threat which caused the prolonged sitting is an
accident); Scherer, 387 N.Y.S.2d at 58] (sitting in an airline
seat during a normal flight which aggravated the passenger’s
thrombophlebitis is not an accident). This Court is willing to
accept for the sake of argument that these cases show that
sitting in an aircraft during a normal flight is not an accident.
Thus, injuries sustained merely from sitting during a normal
flight are not compensable under the Warsaw Convention.
From the conclusion that merely sitting does not constitute
an accident, Continental extrapolates that failing to warn of
the risk associated with merely sitting cannot be an acci-
dent either. The Court respectfully disagrees. The Blansetts
allege that Continental violated a “custom, rule, and/or
procedure among international long-haul carriers [by failing]
to warn, advise and/or take adequate precautions to inform
passengers of the risk of DVT.” Pls.’ First Am. Compl. at
{| 20. Many courts have recognized that failing to carry out
routine procedures in the usual way Can constitute an accident
under the Warsaw Convention. See, e.g., Fishman v. Delta
Air Lines, Inc., 132 F.3d 138, 143 (2d Cir. 1998) (applying a
hot compress to relieve ear pain, which is a routine procedure,
can be an accident if the water is excessively hot); Fulop v.
Malev Hungarian Airlines, 175 F. Supp. 2d 651, 669
(S.D.N.Y. 2001) (failing to divert an airplane when a pass-
enger has a heart attack can be an accident if it “contravenes
l6a
the airline’s established customs, rules or procedures”);
Husain v. Olympic Airways, 116 F. Supp. 2d 1121, 1134-35
(N.D. Cal. 2000) (failing to allow an asthmatic passenger to
move away from cigarette smoke, in contravention of
industry standards and airline policies, is an accident). Thus,
the Blansetts argue that even if merely sitting does not
constitute an accident, failing to warn of the dangers of
merely sitting can constitute an accident if the failure violates
“accepted procedures and rules.” See Husain, 116 F. Supp.
2d at 1134.
In response, Continental argues that it did not have a duty
to warn passengers of the risk of developing DVT. See
Sprayregen v. American Airlines, Inc., 570 F. Supp. 16, 17
(S.D.N.Y. 1983) (holding that the airline had no duty to warn
passengers of the potential hazards of flying with a head
cold). Similarly, Continental argues that its failure to warn is
irrelevant to the accident inquiry. Cf Magan v. Lufthansa
German Airlines, 181 F. Supp. 2d 396, 402-03 (S.D.N.Y.
2002) (holding that ordinary turbulence is not an accident and
that the flight crews’ failure to knock on the lavatory door to
warn the plaintiff of the turbulence was irrelevant to the
accident inquiry). The Sprayregen is inapposite; it involved
an injury on a domestic flight that was governed by negli-
* Although no United States case addresses the specific question
whether failing to warn of the risk of developing DVT is an accident, two
recent foreign cases, cited by Continental, do. In Van Luin v. KLM
Airlines, the District Court of New South Wales at Sydney held that
failing to warn or advise passengers regarding the risk of developing DVT
is not an accident under the Warsaw Convention. In McDonald v. Korean
Air & China Travel, Inc., the Ontario Superior Court of Justice reached
the same conclusion. Both cases apply the Saks accident definition, but
neither analyzes whether failing to follow established procedures may
constitute an accident. Because these cases do not address the specific
rationale proffered by the Blansetts why failure to warn of DVT is an
accident, this Court respectfully does not follow these decisions of its
sister signatories.
17a
gence law rather than by the Warsaw Convention. Under the
Warsaw Convention, whether Continental had a duty to warn
passengers of the risk of developing DVT is not the proper
inquiry; whether Continental’s failure to warn was an unusual
or unexpected event external to the passenger is. See Husain.
116 F. Supp. 2d at 1134 (“When a passenger boards an
airplane, he or she should be able to expect that the flight
crew will comply with accepted procedures and rules. A
failure to do so is unexpected.”). Furthermore, to the extent
Magan holds that failing to warn passengers of particular
risks is never relevant to the accident inquiry, the Court
declines to follow it. But the Court maintains that this is not
Magan’s holding. The Magan court specifically mentioned
that the captain turned on the seat belt sign and made an
announcement to the passengers to keep their seat belts
fastened. Jd. at 403 n.8. The plaintiff's argument was that
the flight crew should have knocked on the lavatory door to
personally warn him of the anticipated turbulence. /d. To the
extent Magan holds that the flight crews’ failure to warn in
that particular circumstance was irrelevant to the accident
inquiry, the Court distinguishes Magan on its facts.
The Blansetts allege that Continental’s failure to warn of
the risk of contracting DVT was an accident because such
failure was an abnormal and unreasonable application of
routine procedure, and thus, it was unusual and unexpected.
Taking these well-pleaded allegations as true, as the Court
must in deciding a 12(b)(6) Motion to Dismiss, this Court
holds that the Blansetts have alleged a set of facts that, if
proven, could support recovery under the Warsaw Conven-
tion. Thus, this Court will not dismiss the Blansetts’ claims
based on Continental’s failure to warn of the risk of
developing DVT. |
18a
B. Motion for Partial Summary Judgment
Having denied Continental’s request to dismiss the
Blansetts’ failure-to-warn claims, the Court now turns to
Continental’s alternative Motion for Summary Judgment on
those claims. Summary judgment is appropriate if no genuine
issue of material fact exists and the moving party is entitled to
judgment as a matter of law. See Fed. R. Civ. P. 56(c); see
also Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct.
2548, 2552-53, 91 L. Ed. 2d 265 (1986). When a motion for
summary judgment is made, the nonmoving party must set
forth specific facts showing that there is a genuine issue for
trial. See Anderson v. Liberty Lobby, Inc., 477'U.S. 242, 250,
106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986).
Procedurally, the party moving for summary judgment
bears the initial burden of “informing the district court of the
basis for its motion, and identifying those portions of [the
record] which it believes demonstrates the absence of a
genuine issue of material fact.” Celotex, 477 U.S. at 323, 106
S. Ct. at 2553; see also Fed. R. Civ. P. 56(c). The burden
then shifts to the nonmoving party to establish the existence
of a genuine issue for trial. See Matsushita, 475 U.S. at 585-
87, 106 S. Ct. at 1355-56; Wise v. E.l. DuPont de Nemours &
Co., 58 F.3d 193, 195 (Sth Cir. 1995).
In the Motion now before the Court, Continental moved to
dismiss the Blansetts’ failure-to-warn claims, pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure, or, in
the alternative, for summary judgment as to those claims. On
August 2, 2002, the Blansetts requested and this Court
granted an extension of time to respond to Continental’s
Motion because the response would “require substantial
factual and expert evidence to reply.” Pls.’ Mot. to Extend
Time at 1.. But, when the Blansetts timely responded on
October 15, 2002, they included no such “factual and expert
evidence.” Instead, the Blansetts asked this Court to ignore
Continental’s request for summary judgment, contending that
19a
Continental did not meet its burden to inform the Court of the
basis for its Motion and to identify the absence of a genuine
issue of material fact. The Court disagrees and is somewhat
frustrated by the Blansetts’ failure to substantively respond.
The Court must treat Defendant’s Motion substantively and
therefore ORDERS the Blansetts to substantively respond to
the summary judgment motion within fifteen (15) days of this
Order, or the Court will treat the Motion for Partial Summary
Judgment on Plaintiffs’ Claims Based on Failure to Warn as
unopposed.”
Il.
For all of the reasons set forth above, the Court hereby
respectfully DENIES Defendant Continental Airlines, Inc.’s
Motion to Dismiss Plaintiffs’ Claims Based on Failure to
Warn. The Court hereby ORDERS Plaintiffs to substantively
respond to Continental’s Motion for Partial Summary
Judgment on Plaintiffs’ Claims Based on Failure to Warn
within fifteen (15) days of this Order, or the Motion will be
treated as unopposed. Each Party is to bear its own taxable
costs and expenses incurred herein to date, regarding any
matter treated in this Order.
IT IS SO ORDERED.
DONE this 18th day of November, 2002, at Galveston.
Texas.
/s/ Samuel B. Kent
SAMUEL B. KENT
UNITED STATES DISTRICT JUDGE
* See S.D. Tex. Local Rule 7.4 (“Failure to respond will be taken as a
representation of no opposition.”). :
20a
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
[Filed Dec. 11, 2002]
Civil Action No. G-02-061
MICHAEL “SHAWN” BLANSETT AND MODESTA N. BLANSETT,
Individually and as Next Friends of MCKENNA BLANSETT and
BLAKE BLANSETT, Minors
Plaintiffs,
Vv.
CONTINENTAL AIRLINES, INC.
Defendant.
ORDER DENYING DEFENDANT CONTINENTAL
AIRLINES, INC.°S MOTION FOR PARTIAL SUMMARY
JUDGMENT ON PLAINTIFFS’ CLAIMS BASED ON
FAILURE TO WARN
Plaintiffs Michael “Shawn” Blansett and Modesta Blansett
(collectively “the Blansetts”) bring this lawsuit against
Defendant Continental Airlines, Inc. (“Continental”) seeking
to recover damages under the Warsaw Convention’ for
injuries allegedly sustained by Shawn Blansett while riding as
a passenger aboard a Continental Airlines flight from
Houston, Texas to London, England on June 18, 2001. The
facts forming the basis of the Blansetts’ claims have been set
out in several Orders issued by this Court.” On July 19, 2002,
' Convention for the Unification of Certain Rules Relating to Inter-
national Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, 3014 T.S.
No. 876 (1934), note following 49 U.S.C. § 40105.
* See, e.g., Blansett v. Continental Airlines, Inc., 204 F. Supp. 2d 999.
1000 (S.D. Tex. 2002) (Kent, J.). Plaintiffs’ allege the following: Shawn
.* A Oe OR ee Oe ae Oe eee el ee ee ee ee TP re ee eS
2la
Continental filed a Motion for Judgment as a Matter of Law
on Plaintiffs’ Claims Based on Failure to Warn? Con-
tinental’s Motion asked this Court to dismiss the Blansett’s
failure-to-warn claims under Rule 12(b)(6) of the Federal
Blansett suffered a debilitating cerebral stroke approximately one hour
before arriving in London. The stroke was ostensibly caused by a blood
clot that formed during the lengthy flight, a phenomenon typically
referred to as “Deep Venous Thrombosis Syndrome” or “Economy Class
Syndrome.” Continental never warned or advised Shawn Blansett of the
likelihood of developing a blood clot in the lower extremities, nor allowed
an onboard physician to examine or treat Shawn Blansett after he became
visibly ill, nor consulted with any third-party medical advice regarding
Shawn Blansett’s condition, nor relayed critical information to the
London ambulance and hospital personnel that eventually treated Shawn
Blansett. As a result of this stroke, 36 year-old Shawn Blansett, who was
once an able-bodied husband, father, and corporate executive earning a
six-figure salary, is now bound to a wheelchair, unable to walk or talk
normally, or even take care of his own needs.
* Plaintiffs allege that “[aJn ‘accident,’ meaning an unexpected or un-
usual event or happening external to plaintiff, occurred when Continental
failed to warn, advise and/or take adequate precautions to inform about
and/or prevent Deep Venous Thrombosis (‘DVT’) on its international
flight. This action and/or inaction constituted an ‘accident’ under the
[Warsaw] Convention because it was an unreasonable application of
routine procedures or operations, was unexpected or unusual, was external
to plaintiff, and was not caused solely by plaintiffs own conduct or
physical condition. Moreover, Continental had actual knowledge of the
risk of contracting DVT during lengthy flights and failed to warn, advise
and/or take adequate precautions to protect its passengers.” Pls.’ First
Am. Comp. at § 19. The Complaint further alleges that “[u]pon
information and belief it is the custom, rule and/or procedure among
international long-haul air carriers to warn, advise and/or take adequate
precautions to inform passengers of the risk of DVT. Accordingly, an
‘accident’ as that term is understood under the Warsaw Convention
occurred when Continental failed to warn, advise and/or take adequate
precautions to inform plaintiff of the risk of contracting DVT because
such failure was an abnormal operation of the carrier and/or an
unreasonable application of routine procedures and thereby unusual and
unexpected.” /d. at ¥ 20.
22a
oe
Rules of Civil Procedure, or to grant partial summary
judgment against the Blansetts on these. claims. On
November 18, 2002, this Court denied Continental’s Motion
to Dismiss, determining. that the Blansetts’ failure-to-warn
allegations stated a claim upon which relief can be granted.
In the November 18, 2002 Order, this Court allowed the
Blansetts an additional fifteen (15) days to respond to the
Motion for Partial Summary Judgment. On December 3,
2002, the Blansetts timely responded to Continental’s Motion
for Partial Summary Judgment on Plaintiffs’ Claims Based on
Failure to Warn, and on December 9, 2002 Continental filed a
- Reply. The exhaustive briefing has thus placed the failure-to-
warn issue squarely before the Court for appropriate dispos-
itive analysis, and the Court thanks the Parties for their
excellent advocacy. For the reason articulated below, Conti-
nental’s Motion for Partial Summary Judgment on Plaintiffs’
Claims Based on Failure to Warn is respectfully DENIED.
Summary judgment is appropriate if no genuine issue of
material fact exists and the moving party is entitled to
judgment as a matter of law. See Fed. R. Civ. P. 56(c); see
also Celotex Corp. v. Catrett, 477 U.S. 317,323, 106 S. Ct.
2548, 2552-53, 91 L. Ed. 2d 265 (1986). When a motion for
summary judgment is made, the nonmoving party must set
forth specific facts showing that there is a genuine issue for
trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,250,
106° S. Ct. 2505, 2510, 91 L. Ed 202 (1986). Issues of
material fact are “genuine” only if they require resolution by
a trier of fact. See id, 477 U.S. at 248, 106 S. Ct. at 2510.
The mere existence of some alleged factual dispute between
the parties will not defeat an otherwise properly supported
motion for summary judgment. Only disputes over facts that
might affect the outcome of the lawsuit under governing law
will preclude the entry of summary judgment. See id, 477
U.S. at 247-48, 106 S. Ct. at 2510. If the evidence is such
23a
that a reasonable fact finder could find in favor of the
nonmoving party, summary judgment should not be granted.
See id; see also Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d
538 (1986); Dixon v. State Farm Fire & Cas. Co.. 799 F.
Supp. 691, 694 (S.D. Tex 1992) (noting that summary judg-
ment is inappropriate if the evidence could lead to different
factual findings and conclusions). Determining credibility,
weighing evidence, and drawing reasonable inferences are
left to the trier of fact. See Anderson, 477 U.S. at 255, 106 S.
Ct. at 2513.
Procedurally, the party moving for summary judgment
bears the initial burden of “informing the district court of the
basis for its motion, and identifying those portions of [the
record] which it believes demonstrate the absence of a
genuine issue of material fact.” Ce/lotex, 477 U.S. at 323, 106
S. Ct. at 2553; see also Fed. R. Civ. P. 56(c). The burden
then shifts to the nonmoving party to establish the existence
of a genuine issue for trial. See Matsushita, 475 U.S. at 585-
87, 106 S. Ct. at 1355-56. However, to meet its burden, the
nonmovant “must do more than simply show that there is
some metaphysical doubt as to the material facts, “but
instead, must “come forward with ‘specific facts showing that
there is a genuine issue for trial.” /d., 475 U.S. at 586-87.
106 S. Ct. at 1355-56 (quoting Fed. R. Civ. P. 56(e)).
If.
This Court has already held that the Warsaw Convention,
“an international treaty governing ‘all international trans-
portation of persons, baggage, or goods performed by aircraft
for hire,’” provides the exclusive cause of action and remedy
for the Blansetts’ claims against Continental. See Blansett v.
Continental Airlines, Inc., 203 F. Supp. 2d 736, 744 (S.D.
Tex. 2002) (Kent, J.) (quoting E/ Al Israel Airlines, Ltd. vy.
Tseng, 525 U.S. 155, 162, 119 S. Ct. 662, 668, 142 L. Ed. 2d
576 (1999)). In order to prevail on a claim under the Warsaw
24a
Convention, a plaintiff must prove that (1) an “accident” (2)
“took place on board the aircraft or in the course of
operations of embarking or disembarking,” (3) which
“caused” (4) an “injury.” McCaskey v. Continental Airlines,
Inc., 159 F. Supp. 2d 562, 569 (S.D. Tex. 2001) (Kent, J.)
(citing Eastern Airlines, Inc. v. Floyd, 499 U.S. 530, 535-56,
111 S. Ct. 1489, 113 L. Ed. 2d 569 (1991)). In its November
18, 2002 Order, this Court determined that the Blansetts’
allegation that an accident occurred when Continental failed
to warn passengers on the transatlantic flight of the risk of
developing Deep Venous Thrombosis (“DVT”) stated a claim
upon which relief can be granted. This Court’s determination
was based on case law holding that an airline’s failure to
carry out routine procedures in the usual manner can
constitute an accident under the Warsaw Convention. See.
e.g., Fishman v. Delta Air Lines, Inc., 132 F.3d 138, 143 (2d.
Cir. 1998); Fulop v. Malev Hungarian Airlines, 175 F. Supp.
2d 651, 669 (S.D.N.Y. 2001); Husain v. Olympic Airways,
116 F. Supp. 2d 1121. 1134-35 (N.D. Cal. 2000). It was
somewhat unclear in the Complaint whether the Blansetts
were arguing that Continental’s failure to warn about DVT
was (1) a failure to follow its own routine procedures, (2) a
failure to follow the routine procedures of the industry, or (3)
both. The Blansetts’ summary judgment Response makes
clear that the failure-to-warn claims are based solely on
Continental’s failure to follow the alleged industry custom
among international long-haul carriers to warn of the risk of
DVT."
Based on this clarification, the Court briefly revisits
whether failure to follow industry custom may constitute an
* The Blansetts allege that “[a]bsolutely, evidence exists raising a
genuine fact issue as to whether Continental violated the industry custom
of long-haul, carriers by failing to warn its passengers of the risk of
developing [DVT].” Pls.’ Dec. 3, 2002 Resp. at p.1.
25a
accident. The United States Supreme Court has defined a
Warsaw Convention accident as “an unusual or unexpected
event or happening that is external to the passenger.” Air
France v. Saks, 470 U.S. 392, 405, 105 S. Ct. 1338, 1345, 84
L. Ed. 2d 289 (1985). An airline’s failure to Carry out routine
procedures in the usual manner may constitute an accident.
See é.g., Fishman v. Delta Air Lines, Inc., 132 F.3d 138. 143
(2d Cir. 1998) (applying a hot compress to relieve ear pain,
which is a routine procedure, can be an accident if the water
is excessively hot); Fulop v. Malev Hungarian Airlines, 175
F. Supp. 2d 651, 669 (S.D.N.Y. 2001) (failing to divert an
airplane when a passenger has a heart attack can be an
accident if it “contravenes the airline’s established customs,
rules or procedures”); Husain v. Olympic Airways, 116 F.
Supp. 2d 1121, 1134-35 (N.D. Cal. 2000) (failing to allow an
asthmatic passenger to move away from cigarette smoke, in
contravention of industry standards and airline policies, is an
accident). The Fulop and Husain courts clearly considered
failure to properly carry out the routine procedures of the
industry to be an accident. The Husain court stated:
[uJnder no reasonable interpretation of the facts can one
conclude that [the flight attendant’s] failure to assist [the
decedent] was expected or usual. The Court has heard
extensive testimony on the standard of care for flight
attendants in situations such as this, and concludes that
[the flight attendant] acted in an unexpected and unusual
manner in several respects.
First, the recognized standard of care for flight
attendants during international air travel demands that
a flight attendant make efforts to accommodate a
passenger who indicates that he or she needs to be
moved for medical reasons... ..
26a
Third, not only did [the flight attendant’s] failure to
act violate the industry standard of care, it also violated
Olympic Airways’ policy.
Husain, 116 F. Supp. 2d at 1132 (emphasis added). The
Husain court repeatedly notes that the flight attendant’s
behavior was unusual and unexpected because she violated
the “industry standard of care.” See, eg. id at 1133
(reasoning that the decedent’s expectation that he would be
allowed to sWitch seats was even more reasonable “in light of
the normal operating procedures of international carriers”
and stating that the flight attendant violated the “industry
standard of care” by failing to allow him to move.) Similarly,
the Fulop court states:
j
[i]t also requires no reliance on authority that, viewing
the circumstances objectively as the Saks inquiry
demands, the ordinary traveler reasonably would expect
that-as-the normal, usual and expected response to such
urgencies, and as a fair balancing of interests and risks
characteristic of air travel-in handling life-threatening
exigencies, airlines rendering services as common
carriers would be particularly scrupulous and exacting in
complying with their own industry norms, internal
policies and procedures, and general standards of care.
Fulop, 175 F. Supp. 2d at 665 (emphasis added). Although
Husain’s and Fulop’s accident analyses were based on
violations of the airlines’ internal procedures and violations
of industry customs, this Court specifically concludes that
airlines’ violation of an industry standard of care, alone, can
be “an unusual or unexpected event or happening that is
external to the passenger,” see Saks, 470 U.S. at 405, 105 S.
Ct. at 1345, and thus, an “accident.” To hold otherwise
would have the ironic result of rewarding individual airlines
for adopting an “ostrich” approach of failing to institute
routine safety procedures in compliance with generally
recognized industry standards of care. Safety in a technically
—————————————————————
27a
evolving industry, such as air travel, can and must keep up
with reasonable and practical industry practices. This is
especially true, where, as here no real expense is even
involved. This case does not require an expensive or
intrusive retrofit or equipment exchange. It involves nothing
more than the reprinting of safety placards and a thirty-
second oral announcement once or twice in each long flight.
Ill.
Under the Federal Rules of Civil Procedure. an affidavit
opposing summary judgment “shall be made on personal
knowledge, shall set forth such facts as would be admissible
in evidence, and shall show affirmatively that the affiant is
competent to testify to the matters stated therein” Fed. R.
Civ. P. 56(e). An expert's affidavit may raise a material
question of fact if the expert sets forth more than mere
conclusory opinions. See Jacobelli Constr.. Inc. y County of
Monroe, 32 F.3d 19, 25-26 (2d Cir. 1994). In addition. an
affidavit stating the facts upon which an expert relies can
satisfy Rule 56(e) even if the corresponding data is not
attached. See id. at 25.
The Blansetts present the sworn affidavit of aviation health
expert Farrol Kahn, director of the Aviation Health Institute,
to establish a fact issue regarding the existence of an industry
custom to warn of the risk of DVT.° Mr. Kahn States, “In my
> The Blansetts present Mr. Kahn as an expert on aviation health and
the aviation industry, specifically the aviation industry’s response to DVT.
In its Reply, Continental questions, Mr. Kahn’s qualifications, stating that
“[t]he credentials submitted by Mr. Kahn fail to demonstrate that he is a
qualified expert in many, if not all, of the subjects on which he opines.”
Def.’s Dec. 9, 2002 Reply at p.4 n.5. In his affidavit, Mr. Kahn identifies
numerous publications he has authored and presentations he has made to
various bodies including the World Health Organization and the British
Parliament regarding DVT and the aviation industry. In addition, Mr.
Kahn is a delegate to the World Health Organization’s Deep Venous
Thrombosis study. For the purposes of this Motion, this Court concludes
28a
opinion, at the time of Mr. Blansett’s injury, Continental, by
providing no information, warning or advice regarding DVT
in any form, manner or medium, violated international
aviation industry custom.” Aff. of Farrol Kahn at § 16. Mr.
Kahn presents a memorandum issued months before Shawn
Blansett’s injury by the International Air Transport Asso-
ciation (““IATA”)° recommending that its members. inform
passengers of the risk of DVT and of ways to avoid
developing DVT.’ In addition, Mr. Kahn states that the time
of Shawn Blansett’s stroke in June of 2001, five of the ten
most-traveled airlines, provided information to passengers
regarding the risk of DVT.
Accepting all of the evidence and drawing all justifiable
inferences in the Blansetts’ favor, this Court determines that a
reasonable fact-finder, a jury in this case, could determine
that Continental’s failure to warn passengers on its trans-
atlantic flight of the risk of DVT was an unexpected and
unreasonable deviation from routine industry procedure, and
thus, an accident under the Warsaw Convention. In this
rapidly emerging area of law and medicine, a full adju-
dication of the issues, enhanced by the wisdom and guidance
that Mr. Kahn’s knowledge and experience regarding DVT and the
aviation industry make his opinions on the subject manifestly relevant and
reliable. See Fed. R. Evid. 702; see also Kumho Tire Co. v. Carmichael,
526 U.S. 137, 152, 119 S. Ct. 1167, 1176, 143 L. Ed. 2d 238 (1999).
° The IATA is an industry association of 280 international air carriers,
comprising 95% of scheduled international air travel. Continental is a
member of the IATA.
” The February 8, 2001 press release states that “[a]t the time of
reservation, travellers should be” informed of the risks of DVT and
encouraged to seek medical advice if they have certain risk factors. In
addition, “[p]rior to boarding and again on board, passengers should be
encouraged” to take certain precautionary measures, such as drinking non-
alcoholic fluids, wearing loose-clothing, and performing exercises in their
seats, to avoid developing DVT.
29a
provided by a jury of the Parties’ peers, is needed to resolve
this important question.
IV.
For all of the reasons set forth above, the Court hereby
respectfully DENIES Defendant Continental Airlines, Inc.’s
Motion for Partial Summary Judgment on Plaintiffs’ Claims
Based on Failure to Warn. Each Party is to bear its own
taxable costs and expenses incurred herein to date, regarding
any matter treated in this Order.
IT IS SO ORDERED.
DONE this 11th day of December, 2002. at Galveston,
Texas.
/s/ Samuel Kent
SAMUEL B. KENT
UNITED STATES DISTRICT JUDGE
30a
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
7 GALVESTON DIVISION
[Filed Mar. 10, 2003]
Civil Action No. G-02-061
MICHAEL “SHAWN” BLANSETT AND MODESTA N. BLANSETT,
Individually and as Next Friends of MCKENNA BLANSETT and
BLAKE BLANSETT, Minors,
Plaintiffs,
Vv.
CONTINENTAL AIRLINES, INC.
Defendant.
ORDER OF CERTIFICATION FOR
INTERLOCUTORY APPEAL
Before the Court is plaintiffs’ and defendant’s agreed
motion to certify a 1292(b) interlocutory appeal.
The Court finds that the question
Does a failure to warn an airline passenger of the
possibility of developing Deep Vein Thrombosis consti-
tute an “accident” under the Warsaw Convention?
involves a controlling question of law as to which there is
substantial ground for difference of opinion, and that an
immediate appeal may materially advance the ultimate
termination of this litigation.
It is ORDERED that the parties’ agreed motion to certify
1292(b) interlocutory appeal is GRANTED.
It is further ORDERED that the Court’s orders entered on
November 18, 2002 and December 11, 2002 are CERTIFIED
3la
for interlocutory appeal on this question: “Does an alleged
failure to warn an airline passenger of the possibility of
developing Deep Vein Thrombosis constitute an “accident”
under the Warsaw Convention?” The Orders entered on
November 18, 2002 and December 11, 2002 are amended to
State they “involve a controlling question of law as to which
there is a substantial ground for difference of opinion and that
an immediate appeal from the Order may materially advance
the ultimate termination of this litigation.”
It is further ORDERED that all proceedings in this matter
are stayed pending the outcome of an interlocutory appeal.
SIGNED March 7, 2003.
/s/ Samuel B. Kent
HON. SAMUEL B. KENT
UNITED STATES DISTRICT JUDGE
32a
APPENDIX C
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
[Filed Apr. 23, 2003]
No. 03-16
MICHAEL SHAWN BLANSETT; MODESTA N. BLANSETT, as next
friend McKenna Blansett, as next friend Blake Blansett,
Individually, and Minors,
Plaintiffs-Respondents-
Cross-Petitioners,
versus
CONTINENTAL AIRLINES INC.,
Defendant-Petitioner-
Cross-Respondent.
Petitions for Leave to Appeal
from an Interlocutory Order
Before BARKSDALE, DeMOSS, and BENAVIDES,
Circuit Judges.
BY THE COURT:
IT IS ORDERED that the petition of Continental Airlines,
Inc. for leave to appeal from the interlocutory orders of the
United States District Court for the Southern District of
Texas, Galveston, entered on November 18, 2002, and on
December 11, 2002, as each of such orders has been amended
by the order entered on March 10, 2003, is GRANTED.
IT IS FURTHER ORDERED that the petition of Michael
Shawn Blansett and Modesta N. Blansett for leave to appeal
from the interlocutory orders of the United States District
33a
Court for the Southern District of Texas. Galveston, entered
on November 18, 2002, and on December 11, 2002, as each
of such orders has been amended by the order entered on
March 10, 2003, is GRANTED.
IT IS FURTHER ORDERED that the Clerk of this Court
shall set a briefing schedule for this appeal such that it can be -
heard at the next available oral argument session thereafter.
/s/ RHB, HRD, FPB
34a
APPENDIX D
United States Code Annotated
Title 49. Transportation
Subtitle VII—Aviation Programs
Part A—Air Commerce and Safety Subpart III—Safety
Chapter 447—Safety Regulation
§ 44701. General requirements
(a) Promoting safety—The Administrator of the Federal
Aviation Administration shall promote safe flight of civil
aircraft in air commerce by prescribing—
(1) minimum standards required in the interest of safety
for appliances and for the design, material, construction,
quality of work, and performance of aircraft, aircrafi engines,
and propellers;
(2) regulations and minimum standards in the interest of
safety for—
(A) inspecting, servicing, and overhauling aircraft,
aircraft engines, propellers, and appliances;
(B) equipment and facilities for, and the timing and
manner of, the inspecting, servicing, and overhauling; and
(C) a qualified private person, instead of an officer or
employee of the Administration, to examine and report on the
inspecting, servicing, and overhauling;
(3) regulations required in the interest of safety for the
reserve supply of aircraft, aircraft engines, propellers, appli-
ances, and aircraft fuel and oil, including the reserve supply
of fuel and oil carried in flight;
35a
(4) regulations in the interest of safety for the maximum
hours or periods of service of airmen and other employees of
air carriers; and
(5) regulations and minimum standards for other prac-
tices, methods, and procedure the Administrator finds neces-
sary for safety in air commerce and national security.
(b) Prescribing minimum safety standards —The Admin-
istrator may prescribe minimum safety standards for—
(1) an air carrier to whom a certificate is issued under
section 44705 of this title; and
(2) operating an airport serving any passenger operation
of air carrier aircraft designed for at least 31 passenger seats.
(c) Reducing and eliminating accidents—The Adminis-
trator shall carry out this chapter in a way that best tends to
reduce or eliminate the possibility or recurrence of accidents
in air transportation. However, the Administrator is not
required to give preference either to air transportation or to
other air commerce in carrying out this chapter.
(d) Considerations and classification of regulations and
standards.— When prescribing a regulation or standard under
subsection (a) or (b) of this section or any of sections 44702—
44716 of this title, the Administrator shall _—
(1) consider—
(A) the duty of an air carrier to provide service with
the highest possible degree of safety in the public interest:
and
(B) differences between air transportation and other
air commerce; and
(2) classify a regulation or standard appropriate to the
differences between air transportation and other air
commerce. 2
36a
(e) Bilateral exchanges of safety oversight respons-
ibilities —
~ (1) In general.—Notwithstanding the provisions of this
chapter, the Administrator, pursuant to Article 83 bis of the
Convention on International Civil Aviation and by a bilateral
agreement with the aeronautical authorities of another
country, may exchange with that country all or part of their
respective functions and duties with respect to registered
aircraft under the following articles of the Convention:
Article 12 (Rules of the Air); Article 31 (Certificates of
Airworthiness); or Article 32a (Licenses of Personnel).
(2) Relinquishment and acceptance of responsibility.—
The Administrator relinquishes responsibility with respect to
the functions and duties transferred by the Administrator as
specified in the bilateral agreement, under the Articles listed
in paragraph (1) for the United States-registered aircraft
described in paragraph (4)(A) transferred abroad and accepts
responsibility with respect to the functions and duties under
those Articles for aircraft registered abroad and described in
paragraph (4)(B) that are transferred to the United States.
(3) Conditions.—The Administrator may predicate, in
the agreement, the transfer of functions and duties under this
subsection on any conditions the Administrator deems
necessary and prudent, except that the Administrator may not
transfer responsibilities for United States registered aircraft
described in paragraph (4)(A) to a country that the Admin-
istrator determines is not in compliance with its obligations
under international law for the safety oversight of civil
aviation.
(4) Registered aircraft defined.—In this subsection, the
term “registered aircraft” means—
37a
(A) aircraft registered in the United States and oper-
ated pursuant to an agreement for the lease, charter, or
interchange of the aircraft or any similar arrangement by an
operator that has its principal place of business or, if it has no
such place of business, its permanent residence in another
country; and
(B) aircraft registered in a foreign country and oper-
ated under an agreement for the lease, charter, or interchange
of the aircraft or any similar arrangement by an operator that
has its principal place of business or, if it has no such place of
business, its permanent residence in the United States.
(f) Exemptions.—The Administrator may grant an exemp-
tion from a requirement of a regulations prescribed under
subsection (a) or (b) of this section or any of sections 44702—
44716 of this title if the Administrator finds the exemption is
in the public interest.
38a
APPENDIX E
Code of Federal Regulations
Title 14, Volume 2
Title 14—AERONAUTICS AND SPACE
CHAPTER I-FEDERAL AVIATION ADMINISTRATION,
DEPARTMENT OF TRANSPORTATION (CONTINUED)
PART 121— OPERATING REQUIREMENTS: DOMESTIC,
FLAG, AND SUPPLEMENTAL OPERATIONS
Subpart A—General
Sec. 121.1 Applicability.
This part prescribes rules governing—
(a) The domestic, flag, and supplemental operations of
each person who holds or is required to hold an Air Carrier
Certificate or Operating Certificate under part 119 of this
chapter.
* * *
.Sec. 121.11 Rules applicable to operations in a foreign
country.
Each certificate holder shall, while operating an airplane
within a foreign country, comply with the air traffic rules of
the country concerned and the local airport rules, except
where any rule of this part is more restrictive and may be
followed without violating the rules of that country.
* * *
Sec. 121.317 Passenger information requirements, smoking
prohibitions, and additional seat belt require-
ments.
(a) Except as provided in paragraph (1) of this section, no
person may operate an airplane unless it is equipped with
passenger information signs that meet the requirements of
39a
Sec. 25.791 of this chapter. Except as provided in paragraph
(1) of this section, the signs must be constructed so that the
crewmembers can turn them on and off.
(b) Except as provided in paragraph (1) of this section,
the “Fasten Seat Belt” sign shall be turned on during any
movement on the surface, for each takeoff, for each landing,
and at any other time considered necessary by the pilot in
command.
(c) No person may operate an airplane on a flight on
which smoking is prohibited by part 252 of this title unless
either the “No Smoking” passenger information signs are
lighted during the entire flight, or one or more “No Smoking”
placards meeting the requirements of Sec. 25.1541 of this
chapter are posted during the entire flight segment. If both
the lighted signs and the placards are used, the signs must
remain lighted during the entire flight segment.
(d) No person may operate a Passenger-carrying airplane
under this part unless at least one legible sign or placard that
reads “Fasten Seat Belt While Seated” is visible from each
passenger seat. These signs or placards need not meet the
requirements of paragraph (a) of this section.
(e) No person may operate an airplane unless there is
installed in each lavatory a sign or placard that reads:
“Federal law provides for a penalty of up to $2,000 for
tampering with the smoke detector installed in this lavatory.”
These signs or placards need not meet the requirements of
paragraph (a) of this section.
(f) Each passenger required by Sec. 121.311(b) to occupy
a seat or berth shall fasten his or her safety belt about him or
her and keep it fastened while the “Fasten Seat Belt” sign is
lighted.
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(g) No person may smoke while a “No Smoking” sign is
lighted or while “No Smoking” placards are posted, except as
follows:
(1) Supplemental operations. The pilot in command of
an airplane engaged in a supplemental operation may
authorize smoking on the flight deck (if it is physically
separated from any passenger compartment), but not in any of
the following situations:
(i) During airplane movement on the surface or dur-
ing takeoff or landing;
(11) During scheduled passenger-carrying public char-
ter operations conducted under part 380 of this title; or
(iii) During any operation where smoking is prohib-
ited by part 252 of this title or by international agreement.
(2) Certain intrastate domestic operations. Except dur-
ing airplane movement on the surface or during takeoff or
landing, a pilot in command of an airplane engaged in a
domestic operation may authorize smoking on the flight deck
(if it is physically separated from the passenger compartment)
it—
(i) Smoking on the flight deck is not otherwise
prohibited by part 252 of this title;
(ii) The flight is conducted entirely with the same
State of the United States (a flight from one place in Hawaii
to another place in Hawaii through the airspace over a place
outside of Hawaii is not entirely within the same State); and
(iii) The airplane is either not turbo-jet-powered or the
airplane is not capable of carrying at least 30 passengers:
(h) No person may smoke in any airplane lavatory.
(i) No person may tamper with, disable, or destroy any
smoke detector installed in any airplane lavatory.
4la
(j) On flight segments other than those described in
paragraph (c) of this section, the “No Smoking” sign must be
turned on during any movement on the surface. for each
takeoff, for each landing, and at any other time considered
necessary by the pilot in command.
(k) Each passenger shall comply with instructions given
him or her by a crewmember regarding compliance with
paragraphs (f), (g), (h), and (i) of this section.
(1) A certificate holder may operate a nontransport cate-
gory airplane type certificated after December 31. 1964, that
is manufactured before December 20, 1997, if it is equipped
with at least one placard that is legible to each person seated
in the cabin that states “Fasten Seat Belt,” and if, during any
movement on the surface, for each takeoff, for each landing,
and at any other time considered necessary by the pilot in
command, a crewmember orally instructs the passengers to
fasten their seat belts.
* *
Sec. 121.535 Responsibility for operational control: Flag
operations.
* * *
(c) The aircraft dispatcher is responsible for—
(2) Issuing necessary instructions and information for
the safety of the flight;
* * *
(f) No pilot may operate an aircraft in a careless or reckless
manner so as to endanger life or property.
* * *
42a
Sec. 121.537 Responsibility for operational control: Supple-
mental operations.
(a) Each certificate holder conducting supplemental
operations—
(1) Is responsible for operational control; and
(2) Shall list each person authorized by it to exercise
operational control in its operator’s manual.
(b) The pilot in command and the director of operations
are jointly responsible for the initiation, continuation,
diversion, and termination of a flight in compliance with this
chapter and the operations specifications. The director of
operations may delegate the functions for the initiation,
continuation, diversion, and termination of a flight but he
may not delegate the responsibility for those functions.
(c) The director of operations is responsible for cancelling,
diverting, or delaying a flight if in his opinion or the opinion
of the pilot in command the flight cannot operate or continue
to operate safely as planned or released. The director of
operations is responsible for assuring that each flight is
monitored with respect to at least the following:
(1) Departure of the flight from the place of origin and
arrival at the place of destination, including intermediate
stops and any diversions therefrom.
(2) Maintenance and mechanical delays encountered at
places of origin and destination and intermediate stops.
(3) Any known conditions that may adversely affect the
safety of flight.
(d) Each pilot in command of an aircraft is, during flight
time, in command of the aircraft and crew and is responsible
for the safety of the passengers, crewmembers, cargo, and
aircraft. The pilot in command has full control and authority
in the operation of the aircraft, without limitation, over other
43a
crewmembers and their duties during flight time, whether or
not he holds valid certificates authorizing him to perform the
duties of those crewmembers.
(¢) Each pilot in command of an aircraft is responsible for
the preflight planning and the operations of the flight in com-
pliance with this chapter and the operations specifications.
(f) No pilot may operate an aircraft, in a careless or
reckless manner, so as to endanger life or property.
* * *
Sec. 121.571 Briefing passengers before takeoff.
(a) Each certificate holder operating a passenger-carrying
airplane shall insure that all passengers are orally briefed by
the appropriate crewmember as follows:
(1) Before each takeoff, on each of the following:
(i) Smoking. Each passenger shall be briefed on
when, where, and under what conditions smoking is
prohibited including, but not limited to, any applicable
requirements of part 252 of this title). This briefing shall
include a statement that the Federal Aviation Regulations
require passenger compliance with the lighted passenger
information signs, posted placards, areas designated for safety
purposes as no smoking areas, and crewmember instructions
with regard to those items. The briefing shall also include a
Statement that Federal law prohibits tampering with,
disabling, or destroying any smoke detector in an airplane
lavatory; smoking in lavatories; and, when applicable,
sinoking in passenger compartments.
(ii) The location of emergency exits.
(iii) The use of safety belts, including instructions on
how to fasten and unfasten the safety belts. Each passenger
shall be briefed on when, where, and under what conditions
the safety belt must be fastened about that passenger. This
44a
briefing shall include a statement that the Federal Aviation
Regulations require passenger compliance with lighted
passenger information signs and crewmember instructions
concerning the use of safety belts.
(iv) The location and use of any required emergency
flotation means.
* *
(b) Each certificate holder shall carry on each passenger-
carrying airplane, in convenient locations for use of each
passenger, printed cards supplementing the oral briefing and
containing —
(1) Diagrams of, and methods of operating, the emer-
gency exits; and
(2) Other instructions necessary for use of emergency
equipment.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.