Petition for Writ of Certiorari — Sakaria v. Trans World Airlines

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') 981498 MAR 22 199

No OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1993

ELPIS SAKARIA, et al.,

Petitioners,

TRANS WORLD AIRLINES

Respondent.

Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fourth Circuit

PETITION FOR WRIT OF CERTIORARI

Jay S. Bybee Ronald D. Maines

6516 Millstone Drive Counsel of Record

Baton Rouge, LA 70808 Maines & Harshman, Chrtd.

(504) 388-8707 2300 M Street, N.W.

Suite 900

Washington, D.C. 20037

(202) 223-2817

Attorneys for Petitioners,

Elpis Sakaria, et al.

March 22, 1994

QUESTIONS PRESENTED FOR REVIEW

1. Whether on de novo review of a summary judgment

record it is proper for a court of appeals to decide a question

of causation on the basis of an expert witness’ response to a

hypothetical?

2. What is the proper standard under the Warsaw

Convention for assessing whether plaintiffs’ medical expert

established a causal nexus between a terrorist attack and a

passenger’s fatal heart attack sufficient to overcome a motion

for summary judgment?

3. Under Air France v. Saks, may evidence of causa-

tion be demonstrated through a passenger’s state of mind

following an accident?

4. Assuming arguendo the propriety of the lower

court’s rendering of decedent’s statements as subject to hearsay

attack for the purposes of determining causation under Article

17, were the statements nevertheless admissible under the

"excited utterance" exception of Fed. R. Evid. 803(2)?

LIST OF PARTIES

The parties to the proceeding below were Elpis Sakaria,

individually and as personal representative of the Estate of

Jagdish Sakaria, Alexander J. Sakaria, Raj J. Sakaria, and

Maria K. Sakaria, Petitioners herein; and Trans World Airlines,

Respondent herein.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ........ i

oe ae ee ire oe ae ii

BAG PU cc ccccccheneéates iv

SR GE POU EUEEMD cite ceereeribes v

Per ore er er ree re ee |

FRE cb Fob wecederasceceiatinn 2

TREATY PROVISION INVOLVED ............. 2

PE. Fa Ce kes evades Seve ce RRC eS 2

REASONS FOR GRANTING THE WRIT ......... 9

TABLE OF APPENDICES

Page

Elpis Sakaria et al. v. Trans World Airlines, 8 F.3d

oe le A RS ee ee la

Order (denying Petition for Rehearing With Suggestion

UE PED kc peeve es ivesrestes 18a

Letter of H. Brandis Marsh, M.D., December 23, 1988

ee ee as CL Pa aie. of Oeve eee 19a

Deposition of H. Brandis Marsh, M.D.,

ee 22a

Affidavit of Nicholas M. Bafitis,

ey te re I ED es ce cee we eeee 30a

Declaration of Ayub K. Ommaya, M.D.,

Fee ET, Ween CI EE ce ccc cee 35a

TABLE OF AUTHORITIES

Page

Cases

Adickes v. S.H. Kress & Co., 398 U.S. 144 (197) ..... il

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

Anderson v. Liberty Lobby, Inc., 477 U.S.

SE: oS a os Aeawiks.0. oe eke ee ewe 10, 11, 13

Cole.v. State, 818 S.W.2d 573 (Ark. 1991) ......... 20

Day v. Trans World Airlines, Inc., 538 F.2d 31

(2d Cir. 1975), cert. denied, 429 U.S. 890 (1976) .... 17

Evangelinos v. Trans World Airlines, Inc..,

- ow a Es Pr 17

Harmony v. State, 594 A.2d 1182 (Md. App. 1991)... . 20

Husserl v. Swiss Air Transport Co., 351 F.Supp. 702,

(S.D.N.Y. 1972), aff'd, 485 F.2d 1240 (2d Cir. 1973) . 18

Krystal v. British Overseas Airways Corp.,

Se as Be rs TED cc cc ces ewes 17

Morgan v. Foretich, 846 F.2d 94 (4th Cir. 1988) ..... 20

Sakaria v. Trans World Airlines, 8 F.3d 164

I ee a oa a gp 0 eo 03 passim

Salerno v. Pan American World Airways, Inc.,

606 F.Supp. 656 (S.D.N.Y. 1965)... .......2.0-. 17

United States v. Iron Shell, 633 F.2d 77 (8th Cir. 1980),

cert. denied, 450 U.S. 1001 (1981) ............. 19

Treaties And Rules

Convention for the Unification of Certain Rules Relating

to International Transportation by Air, done at

Warsaw, Oct. 12, 1929, 49 Stat. 3000 T.S. No. 876,

oe ert rere passim

ee Me EEE ban ste 6a were eee sees 10, 19

Treatises

J. Friedenthal, M. Kane, A. Miller, Civil Procedure

ee NS oh a ob ae Bris iale Picts o bs 0 ee Us 11

J. Weinstein & M. Berger, 4 Weinstein’s Evidence (1993) 19

McCormick On Evidence (2d. ed. 1972) ........... 19

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1993

No.

ELPIS SAKARIA, et al.,

Petitioners,

TRANS WORLD AIRLINES

Respondent.

Petition For A Writ Of Certiorari

To Tne United States Court Of Appeals

For The Fourth Circuit

PETITION FOR WRIT OF CERTIORARI

Petitioners Elpis Sakaria, et al., request that a writ of

certiorari issue to review the judgment and opinion of the

United States Court of Appeals for the Fourth Circuit, entered

in the above-entitled proceeding on October 25, 1993.

OPINION BELOW

The Opinion of the court of appeals is reported at 8

F.3d 164 (4th Cir. 1993) and is reproduced in the Appendix

(App.) at la.

JURISDICTION

The Fourth Circuit’s denial of a petition for rehearing

and suggestion for rehearing en banc was entered November

22, 1993. On February 7, 1994, Chief Justice Rehnquist

extended the time for filing the instant petition to and including

March 22, 1994. This Court’s jurisdiction is invoked under 28

U.S.C. § 1254(1).

TREATY PROVISION INVOLVED

Convention for the Unification of Certain Rules Relating to

International Transportation by Air, done at Warsaw, Oct. 12,

1929, Article 17.'

The carrier is liable for damage sustained in the event

of 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.

STATEMENT

1. The Terrorist Attack At

The Rome Airport

Petitioners Elpis Sakaria and her children are the

survivors of Jagdish Sakaria, a passenger aboard a TWA flight

from Washington, D.C. to Athens, Greece in December 1985.

Shortly before Mr. Sakaria’s flight landed in Rome, terrorists

attacked the TWA ticket counter and embarkation area, killing

fourteen people and injuring others. 8 F.3d at 166, App. at 3a.

* 49 Stat. 3000 T.S. No. 876, 137 L.N.T.S. 11, reprinted in 49

U.S.C. app. § 1502 note.

When the plane landed, the captain announced to the

passengers that an "armed altercation" had occurred at the

airport. The plane was met by an armored security vehicle

which remained nearby while the passengers were held in the

plane for about two hours. Meanwhile, the air conditioning

inside the plane was turned off and the outside temperature was

about 90 degrees. Not surprisingly, there were complaints that

it was "close and warm" inside the plane. The aircraft, a

Boeing 747, had about 400 passenyers aboard and was filled to

capacity. According to the captain, there was "tremendous

curiosity" among the passengers about the terrorist ir ident and

concern for the safety of families at the airport. During the

wait, another armored vehicle and a helicopter patrolled in the

distance. Ibid.

The passengers were eventually bussed to the terminal

and taken to a makeshift waiting area that was not the normal

transit lounge for passengers. The terminal area was sealed off

and patrolled by armed security guards. The makeshift area

had no bathrooms, but passengers were permitted access to a

men’s room located upstairs near where the terrorist attack took

place. After about two hours in the holding area, the passen-

gers were bussed to a different plane, and the flight continued

to Athens. Jbid.

2. Jagdish Sakaria’s Fatal Heart Attack

Mr. Sakaria was met at the Athens airport by Nicholas

Bafitis, a friend from the United States who was visiting family

in Greece. Mr. Bafitis testified in an affidavit that Mr.

Sakaria, on disenibarking from the plane, was “extremely pale

and yellow," that his eyes were "swollen" with “black circles"

under them, and that he looked "terrified." Bafitis Aff., App.

at 3la. Mr. Bafitis further stated that Mr. Sakaria “held his

throat and neck and complained of thirst while recounting his

experience in Rome in angry, excited tones." 8 F.3d at 167,

App. at 4a. His anger was heightened by the fact that "his

flight was supposed to be a nonstop flight." Bafitis Aff., App.

at 31a, 33a.. (Mr. Sakaria’s wife had specifically requested a

nonstop flight when she purchased her husband’s ticket, and

"neither the ticket nor the itinerary reflected the intermediate

stop in Rome.") 8 F.3d at 166, App. at 3a; Bafitis Aff., App.

at 31a.

Later that day, at the house of Mr. Bafitis’ father, Mr.

Sakaria continued to relate the events in Rome. In an angry,

excited voice he talked about the aftermath of the terrorist

attack and reported seeing bodies when he went upstairs to the

bathroom inside the terminal. Bafitis Aff., App. at 32a.

When he saw the bodies, he vomited. Mr. Sakaria also talked

about how frightened he had been aboard the plane, having

seen an armored vehicle and soldiers with machine guns. At

the Bafitis home that evening, Mr. Sakaria refused food

because he felt as if eating would make him vomit. 8 F.3d at

167, App. at 4a; Bafitis Aff., App. at 33a.

The next day, Bafitis drove Mr. Sakaria from Athens to

Volos, a village where Mr. Sakaria’s children lived with his

wife’s parents. In Volos, Mr. Sakaria remained very agitated,

continued to refuse food, and broke out in tears several times

while describ-ing his experience in Rome. Jbid. Sometime

during the second night of his arrival, he died as a result of a

heart attack. 8 F.3d at 167, App. at Sa.

The Sakarias brought a federal diversity suit seeking

damages under theories of breach of contract and tort on the

basis of state law survival and wrongful death claims. TWA’s

answer denied the allegations of the complaint and asserted the

Warsaw Convention as an affirmative defense limiting its

liability. Ibid.

3. Dr. Marsh’s Testimony

Petitioners sought the expert testimony of a cardiologist,

Dr. Brandis Marsh. Dr. Marsh first wrote a letter to

Petitioners’ trial counsel, in which he concluded that Mr.

Sakaria’s heart attack was "provoked by the circumstances of

travel." Marsh Letter, App. at 20a. The principal focus of his

letter is Mr. Bafitis’ description of Mr. Sakaria’s physical

appearance -- bearing the evident manifestations, wrote Dr.

Marsh, of 1 heart attack victim. Mr. Bafitis’ “description of

Mr. Sakaria when the latter deplaned in Athens,” said Dr.

Marsh, "is wholiy consistent with the appearance of a patient

who has sustained recently an acute myocardial infarction."

Ibid. He noted in a single sentence that Mr. Sakaria “saw

rather graphic evidence of the carnage caused by the bombing,"

while in an entire paragraph he discussed the stress-inducing

effects of prolonged confinement aboard the plane: “I have no

doubt that the stress generated by confinement under those

circumstances could have severe adverse implications in a

patient predisposed for some reason to a heart attack." Marsh

Letter, App. at 19a-20a.

Opining "to a reasonable degree of medical certainty ,"

Dr. Marsh stated that Mr. Sakaria "sustained an infarction at

some time between his arrival in Rome and his arrival in

Athens." He concluded that "the evidence [is] more than

adequate to come to a conclusion that the patient died as a

result of a rhythm disorder caused by a myocardial infarction

provoked by the circumstances of travel." /bid.

At Dr. Marsh’s deposition, opposing counsel encour-

aged him to withdraw his opinion that Mr. Sakaria’s death was

"provoked by the circumstances of travel" if it were assumed

that Mr. Sakaria had, in fact, "never seen any bodies, never

saw any blood." Marsh Dep., App. at 24a. Dr. Marsh refused

to diminish the certainty of his opinion unless it were assumed

that the air conditioning on the plane was operating during the

period of confinement and the atmosphere among the passen-

gers was not tense.

A. I read [Mr. Bafitis’] initial statement to

imply that Mr. Sakaria saw bodies. He saw blood.

He saw damage in the airport. Yes. If that turned

out not to be true and if it turned out not to be true

that he really was kept on an airplane for an hour and

a half in an uncomfortable environment, et cetera, et

cetera, yeah, I don’t think I could make the same

conclusion at that point.

Ibid. emphasis added). Dr. Marsh was then asked to assume

that Mr. Sakaria saw no carnage and no blood.

Q. Does that affect any of the opinions that

you have given in your letter?

A. Again, let me add one additional presump-

tion, which I think is in the spirit of your question;

and that is that that hour and a half on the runway is

not characterized by a heat stifling environment, et

cetera, et cetera.

Q. Yes. Let’s assume that’s true. And let’s

add that the mood on the plane is quiet and calm.

A. Yes. That hypothetical would clearly lead

me to a very different opinion.

Ibid. (emphasis added).

Dr. Marsh later affirmed his opinion that Mr. Sakaria’s

death was the result of trauma sustained during the period of

Mr. Sakaria’s travel.

Q. Is it your opinion, then, Dr. Marsh, that

this heart attack and subsequent death was caused by

some sort of trauma?

A. Yes, sir.

Q. So, assuming then that there was trauma

of some sort during the period of travel, is it your

i |

opinion then that whatever happened which caused his

death was an accident?

A. I think it was. Yes, sir. Making those

assumptions.

Marsh Dep., App. at 28a.

4. The District Court’s Ruling

Following discovery, TWA moved for summary

judgment on all claims, on the theory that Mr. Sakaria’s

statements to Mr. Bafitis were inadmissible hearsay. TWA also

argued that Dr. Marsh had "recanted" his original opinion that

Mr. Sakaria’s heart attack had been provoked by the stress of

the stop in Rome. 8 F.3d 167, App. at 6a.

The district court referred the case to a magistrate

judge, who recommended that summary judgment be granted

for TWA. She refused to consider the statements of Mr.

Sakaria to Mr. Bafitis, concluding that they were uncorroborat-

ed hearsay ... bearing no guarantee of trustworthiness." Jd. at

168, App. at 7a. She also denied the Sakarias a hearing and

recommended that their request for additional discovery be

rejected. The district court adopted the magistrate’s recommen-

dations and granted summary judgment for TWA. I[bid.

5. The Court of Appeals’ Decision

The Sakarias appealed the decision of the district court

to the court of appeals, which affirmed summary judgment in

TWA’s favor, "though on reasoning independent of the district

court’s." 8 F.3d at 166, App. at 2a.

The court of appeals first addressed the issue whether

the Sakarias’ claims were cognizable under Article 17 of the

Warsaw Convention. The court concluded that "the district

court properly declined to consider as part of the summary

judgment record the substance of the statements ascribed to Mr.

Sakaria in the Bafitis affidavit" because, said the court, the

facts set forth in the affidavit would not be admissible in

evidence. Jd. at 171, App. at 13a. Nor, according to the court

of appeals, would Mr. Sakaria’s statements fall within the

“excited utterance" exception of Fed. R. Evid. 803(2). Because

"Mr. Sakaria had been subject to hallucinatory misperceptions

of reality" (ibid., App. at 14a) since an accident in 1978, the

court concluded that the ordinary trustworthiness of excited

utterances would not attach in this case.”

Ignoring the Bafitis affidavit, the court of appeals

considered the evidence whether Mr. Sakaria’s death was

causally related to “the period of uncomfortable confinement in

the aircraft by one knowing that it was caused by an

‘altercation’ that justified visible security precautions." 8 F.3d

at 172, App. at 15a. The court concluded that the summary

judgment record did not present an issue of m>*rial fact "as to

the required link of causation between that ¢ st and Jakaria’s

death." Ibid.

In the court’s view, Dr. Marsh’s opinion that the events

at the Rome airport probably provoked Mr. Sakaria’s heart

attack “was effectively renounced once the possible cause was

limited to the prolonged wait in the aircraft." Ibid., App. at

? Mr. Sakaria had suffered an automobile accident in 1978 which

resulted in memory problems, depression, and occasional disorientation and

paranoid feelings — conditions which “improved considerably” over the

(cont'd) course of time, according to Dr. Ayub K. Ommaya, a nuerosurgeon

who had examined Mr. Sakaria after his accident. Ommaya Decl., App. at

35a. Dr. Ommaya “state[d] unequivocally that Mr. Sakaria was not suffering

from a mental illness ... or mental infirmity ... as a result of his head injury”

and that it was “highly unlikely that Mr. Sakaria experienced delusions,

hallucinations, or confabulation on the date of the incident in question.

Rather, in my opinion, to a reasonable degree of medical certainty, Mr.

Sakaria’s experience was based on reality." id., App. at 36a.

16a. The court concluded that Dr. Marsh’s testimony “would

not suffice under our standard to support the requisite finding

of causation, as to which the Sakarias of course had the burden

of proof...." This is so because “proof of causation must be

such ss to suggest ‘probability’ rather than mere ‘possibility.’"

Ibid.

The court of appeals affirmed the district court’s

dismissal of Petitioners’ case. The court denied Petitioners’

request for rehearing and suggestion for rehearing en banc.

App. at 18.

REASONS FOR GRANTING THE WRIT

Under Article 17 of the Warsaw Convention, a carrier

is strictly liable for injury sustained in the course of internation-

al travel where an “accident” which “took place on board the

aircraft or in the course of any of the operations of embarking

or disembarking” caused the "death ... or other bodily injury”

of a passenger. Warsaw Convention, Article 17, supra. The

Sakarias identified two events to the court of appeals which

qualified as “accidents” within the meaning of Article 17. First

was the prolonged confinement of Mr. Sakaria and several

hundred other passengers aboard the parked plane in the

circumstances following the terrorist attack at the Rome airport.

Second, Petitioners asserted that Mr. Sakaria’s later exposure

to the sight of covered bodies of those killed in the terrorist

> With respect to the state-law survival and wrongful death claims, the

court of appeals affirmed summary judgment on the ground that TWA’s

failure to provide enough fuel to fly past Rome, even if that constituted

negligence, “would not support a finding of proximate causation between that

negligence and Sakaria’s death." 8 F.3d at 173, App. at 17a. As to the

contract claim, the court concluded that even assuming a breach of contract

in stopping over in Rome, “the risk that Mr. Sakaria’s death would somehow

be caused by the event in conjunction with a terrorist attack” was “too

remote to allow recovery in contract.” /bid.

attack, as he reported that experience to Mr. Bafitis, was an

"accident" under the Warsaw Convention.

The court of appeals declined to consider whether either

of these events constituted an “accident” under Article 17.

Instead, the court held that because Dr. Marsh “effectively

renounced” his testimony, Petitioners had failed to demonstrate

that any incident in Rome caused the death of Mr. Sakaria. As

we show in Section I, in this the court of appeals became the

trier of disputed fact -- a departure from this Court’s construc-

tion of Fed. R. Civ. P. 56. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242 (1986). Dr. Marsh plainly did not renounce his

opinion. In Sections II and III, we show that, for independent

reasons, the lower court’s rendering of the causation question

resulted from a misapplication of Air France v. Saks, 470 U.S.

392 (1985). Section IV demonstrates that the court of appeals

misconstrued Fed. R. Evid. 803(2) when it held that Mr.

Sakaria’s excited statements to Mr. Bafitis were inadmissible

hearsay.

Review by the Court is warranted to correct these

errors. The questions raised are substantial because they flow

from unresolved issues under the Warsaw Convention and this

Court’s rendering of Article 17 in Air France v. Saks.

I. THE COURT OF APPEALS ERRED IN

GRANTING SUMMARY JUDGMENT WHEN

IT DECIDED THE ISSUE OF CAUSATION

ON THE BASIS OF DR. MARSH’S ANSWER

TO ACOUNTERFACTUAL HYPOTHETICAL.

The court of appeals dismissed the testimony of the

Sakarias’ medical expert, Dr. Brandis Marsh, as insufficient

"under our standard to support the requisite finding of causa-

tion" because it suggested “mere ‘possibility’ rather than

"‘probability.’" 8 F.3d at 172, App. at 16a. But in this the

court of appeals slipped from its designated role of determining

whether there was a “genuine issue of material fact" (Fed. R.

Civ. P. 56(c)) to determining whether it believed Dr. Marsh’s

testimony. The judge is not to "weigh the evidence and deter-

mine the truth of the matter" (Liberty Lobby, 477 U.S. at 249),

and thus may not conduct a "trial on the affidavits" (id. at 255).

In particular, "[c]redibility determinations, the weighing of the

evidence, and the drawing of legitimate inferences from the

facts are jury functions, not those of a judge.” Jbid.

This is a "strict standard” for which "[a]ny doubts" as

to the existence of an issue of material fact must be resolved

against the moving party and the evidence must be construed

"in the light most favorable to the party opposing the motion."

J. Friedenthal, M. Kane, A. Miller, Civil Procedure § 9.3, at

444 (2d ed. 1993). Summary judgment may not be entered

where “moving parties ... [have] not foreclosed the possibility

of the existence of certain facts" from which a jury might find

for the nonmoving party. Liberty Lobby, 477 U.S. at 249. See

also Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59

(1970).

The court of appeals failed to observe these require-

ments. It overstepped its role and usurped the function of the

jury as finder of fact. The court’s only conclusion concerning

Dr. Marsh was that he "effectively renounced” his opinion that

the events in the aircraft and at the terminal caused Mr.

Sakaria’s heart attack “once the possible cause was limited to

the prolonged wait in the aircraft." 8 F.3d at 172, App. at 16a.

Dr. Marsh did nothing of the kind. Rather, he was asked if he

would alter his opinion if there were no extraordinary incident

in the Rome airport and if there were no unusual conditions on

the aircraft.

The record on this point could not be any plainer. Dr.

Marsh was asked in deposition whether his opinion would be

affected if it could be shown that Mr. Sakaria saw no bodies,

no blood, and no damage in the Rome airport. He responded,

"Yes. If that turned out not to be true and if it turned out not

to be true that he really was kept on an airplane for an hour

and a half in an uncomfortable environment." Marsh Dep.,

App. at 24a. Opposing counsel accepted the qualification and

repeated the question: Let’s assume that’s true. And let’s add

that the mood on the plane is quiet and calm." Dr. Marsh

answered, quite reasonably, "Yes. That hypothetical would

Clearly lead me to a very different opinion.” Jbid.

But the questioner’s “hypothetical,” as Dr. Marsh

characterized it, became the court of appeals’ unexamined

assumption. The whole line of questioning is transmogrified,

corrupted by the court: "[Dr. Marsh’s] original opinion that

the totality of the events as allegedly recounted by Sakaria ...

probably provoked the heart attack was effectively renounced

once the possible cause was limited to the prolonged wait in the

aircraft." 8 F.3d at 172, App. at 16a. The court of appeals

did not purport to rest its decision on any other facts than this

“renunciation” which Dr. Marsh treated strictly as a “hypotheti-

cal." Indeed, the lower court acknowledged that with respect

to the conditions on the aircraft, Dr. Marsh had relied on

"admissible evidence." Jd. at 173, App. at 16a. The court

noted that the plane was held on the runway for two hours,

that the air conditioning was shut down "[w]ithin three or four

minutes of landing,” and that the filled-to-capacity flight

became "‘close and warm.’" Jd. at 166, App. at 3a.

These facts are precisely the assumptions upon which

Dr. Marsh based his conclusion, and they are the assumptions

he was asked to ignore "hypothetical[ly]" by opposing counsel.

Given Dr. Marsh’s expert opinion on the causal link between

the conditions on the plane and Mr. Sakaria’s heart attack, a

jury could reasonably find in favor of the Sakarias. It was

therefore error as a matter of law for the court of appeals to

preclude the case from going to a jury.

In light of the uncontradicted evidence in the summary

judgment record, it should have been unmistakably clear to the

lower court that there are sufficient material questions of fact

in play here to warrant a trial. In short, on the basis of this

—

record, “a jury could find either that the plaintiff proved his

case by the quality and quantity of evidence required by the

governing law or that he did not.” Liberty Lobby, 477 U.S. at

241. This is all the law requires for the Sakarias to have over-

come TWA’s motion for summary judgment. The Sakarias

discharged their burden. TWA’s motion should have been

denied, and the court erred in granting it.

I], THE COURT OF APPEALS MISAPPLIED

THE PROPER STANDARD UNDER THE

WARSAW CONVENTION WHEN IT AS-

SESSED THE ADEQUACY OF THE CAUSAL

NEXUS BETWEEN THE TERRORIST AT:

TACK AND MR. SAKARIA’S FATAL INJU-

RY.

Even if the matter of Dr. Marsh’s testimony were not

so clear, the lower court committed an analytical error in the

way it parsed Article 17 of the Warsaw Convention. The court

bracketed the issue whether prolonged confinement in the after-

math of a terrorist attack was an "accident" under this Court’s

decision in Air France v. Saks because "the summary judgment

record does not present a genuine issue of material fact as to

the required link of causation between that event and Sakaria’s

death.” 8 F.3d at i72, App. at 15a. In so doing, the court

committed an error, for it implicitly treated the question

whether an accident occurred as analytically separable from the

question whether Mr. Sakaria’s death was causally related to

thc accident.

In Saks, a passenger aboard an Air France flight from

Paris to Los Angeles felt severe pressure and pain in her left

ear as the plane descended for landing. The passenger thereaf-

ter consulted a doctor who concluded she had become perma-

nently deaf in that ear. The passenger’s suit alleged that her

hearing loss was caused by the negligent operation of the

jetliner’s pressurization system. Air France moved for summa-

ry judgment on the ground that the plaintiff could not prove her

injury was caused by an “accident,” inasmuch as the evidence

indicated that the pressurization system had worked normally.

This Court granted review to parse the meaning of “accident”

under Article 17 -- more specifically, to decide between two

alternative definitions of "accident" in usage under tort law:

"An accident that is the cause of an injury and an injury that is

itself an accident." 470 U.S. at 399.

The Court adopted the first use of the word, which it

clarified as follows: "[W)hile the word ‘accident’ is often used

to refer to the event of a person’s injury, it is also used to

describe a cause of injury, and when the word is used in this

latter sense, it is usually defined as a fortuitous, unexpected,

unusual, or unintended event." Jd. at 400 (emphasis added).

Thus, “liability under Article 17 ... arises only if a passenger’s

injury is caused by an unexpected or unusual event that is

external to the passenger...." Jd. at 405. On the other hand,

“when the injury indisputably results from the passenger’s own

internal reaction to the usual, normal, expected operation of the

aircraft, it has not been caused by an accident, and Article 17

... does not apply." Jbid. The plaintiff in Saks failed because

she could show no more than that she experienced her ear

problem in the course of normal air travel -- that is, her

hearing loss was not the result of an "accident."

The critical difference between this case and Saks is that

in Saks, the passenger could not demonstrate that any aspect of

her course of travel qualified as an “accident” under Article 17.

Had there been evidence, for instance, that a crack in the

fuselage of the plane caused the cabin to depressurize -- an

event indisputably “accidental” -- there would have been no

question that the plaintiff would have survived Air France’s

summary judgment motion, and the case would have been tried.

The appropriate standard under Saks for resolving the

issue Of causation is implicit in the facts of that case. To

identify the causal connection between an event and an injury,

one looks for a variable present in the case involving injury but

absent in the normal course of affairs. It may be that the only

variable to be found is an event which may have caused the

injury, although it is not known to do so generally -- that is, the

event cannot be ruled out as a cause of the injury, but it is

merely a possible cause. In other cases, the variable found

correlates or "fits" with the type of injury in question. That is,

the unusual circumstances are known to be the type of event

which causes such an injury. When evidence is of this latter

type, the evidence of the occurrence of an "accident" is, at the

same time, evidence for its cause. A variable of this sort is

described by the Court in Saks as something "fortuitous,

unexpected, unusual, or unintended." Jd. at 405. That is why,

in Saks, evidence of a depressurized cabin would have been

decisive: It would have constituted, at one and the same time,

evidence for an accident’s having occurred and evidence of

causation. For, a flux in pressurization is an unusual event of

a kind known to cause ear problems. Identifying an event which

bears such a correlation to the kind of injury suffered ipso facto

establishes the probability of a causal relation. Because of the

logical interdependence between “accident” (as defined in Saks)

and causation, the two issues cannot be resolved independently.

In the instant case, the particular circumstances of the

plane’s being parked on the runway in the aftermath of a

terrorist attack qualify as “an unexpected or unusual event or

happening that is external to the passengers." Ibid.* Moreover,

‘ Applying the Saks principles to characterize the circumstances of Mr.

Sakaria’s travel, it should be beyond rational dispute that an “accident” in the

sense of “an unexpected or unusual event or happening external to the

passenger, id. at 405, befell Mr. Sakaria. His flight touched down minutes

after a savage terrorist attack upon the terminal, as a result of which: Mr.

Sakaria and other passengers (numbering about 400) were confined in

(cont'd) a jetliner for approximately two hours, with the air conditioning

turned off, the outside temperature approaching 90 degrees, the captain

having announced that an “armed altercation” had just occurred at the

airport, an armored vehicle waiting outside the plane, another armored

vehicle and helicopter patrolling in the distance, and evident concern among

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this unusual event is a kind that would create the stress capabie

of inducing a heart attack. Therefore, in finding evidence of

such an event, the probability of a causal nexus is also estab-

lished.

The error in the court of appeals’ analysis on this score

is that the court ignored the issue whether the events in Rome

constituted an “accident,” when that issue’s resolution is

logically intertwined with the issue of causation. Although the

court assumed for the sake of argument that an “accident” had

occurred, it failed to focus any further on the logical implica-

tions of such a determination under Saks. Contrary to the lower

court’s approach, the teaching of Saks is that causation cannot

be resolved independent of the issue whether an “accident”

occurred. Had the court properly executed its Article 17

analysis in light of Saks, it would have concluded that an

"accident" had occurred and that the testimony of Dr. Marsh,

correlating the stress of the "accident" with Mr. Sakaria’s heart

attack, had supplied the requisite causal nexus to overcome

TWA’s motion for summary judgment.

Ill. EVIDENCE OF MR. SAKARIA’S STRESS

OVER THE TERRORIST ATTACK IS EVI-

DENCE OF CAUSATION UNDER AIR

FRANCE V. SAKS IRRESPECTIVE OF THE

ADMISSIBILITY OF HIS HEARSAY STATE-

MENTS.

The court of appeals concluded that “the district court

properly declined to consider ... the substance of the statements

ascribed to Mr. Sakaria in the Bafitis affidavit" because the

facts set forth therein were hearsay which would not be

admissible in evidence. 8 F.3d at 171, App. ar 13a. For this

(cont'd) passengers over the attack and the safety of families waiting inside

the airport.

reason, the court rejected Mr. Sakaria’s statements to Mr.

Bafitis without considering their value, apart from their

truthfulness, for the purposes of its causality analysis. This

constituted error. Even if Mr. Sakaria’s statements to Mr.

Bafitis are subject to hearsay attack, the statements are nonethe-

less admissible for the purposes of assessing causality under

Article 17.

Because there is credible medical testimony that events

occurring in the course of Mr. Sakaria’s travel caused his heart

attack, "it is for the trier of fact to decide whether an ‘accident’

... caused the passenger’s injury." Saks, 470 U.S. at 405. The

only requirement for an “accident” under Saks is that the initial

cause of the injury be some external event of an unusual

character. As this Court noted in Saks, "Any injury is the

product of a chain of causes, and we require only that the

passenger be able to prove that some link in the chain was an

unusual or unexpected event external to the passenger." Jd. at

406. There was ample record evidence that Mr. Sakaria’s heart

attack was causally related to the events surrounding the

terrorist attack. Jf Mr. Sakaria’s reaction to that objective

experience were compounded by the terror of an imagined

incident, that aspect of the record only fortified -- it did not

diminish -- Petitioners’ causation evidence. So long as the

chain of events included one link which qualified as an "unusu-

al or unexpected event,” Mr. Sakaria’s report of his experience

to Mr. Bafitis, as reflective of Mr. Sakaria’s reaction to the

totality of the circumstances following the landing in Rome,

was causation evidence which the court of appeals wrongly

isolated from its analysis. For example, in Salerno v. Pan

American World Airways, Inc., 606 F. Supp. 656 (S.D.N.Y.

1985), the district court held that a bomb threat resulting in a

passenger’s suffering a miscarriage twenty-four hours later

constituted an “accident” under Article 17. The fact that no

bomb was located was irrelevant to the passenger’s perception

of a serious threat.°

Here, Mr. Sakaria reacted to an objectively verifiable

event which was not part of the normal or expected operation

of the airline. Petitioners provided sufficient evidence that the

Rome incident was causally related to Mr. Sakaria’s death to

permit a jury to decide the facts, including the significance of

Mr. Sakaria’s reaction. Summary judgment on the issue

whether a particular event qualifies as an "accident" is appro-

priate only “when the injury indisputably results from the

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

expected operation of the aircraft." Saks, 470 U.S. at 406.

That counterfactual does not obtain here. Mr. Sakaria’s excited

statements were likely to be trustworthy evidence of his state of

mind and emotional condition, a proposition with which the

court of appeals agreed. 8 F.3d at 172 n. 10, App. at 14a.

Accordingly, the court of appeals misconstrued Saks when it

discarded Mr. Sakaria’s statements to Mr. Bafitis as inadmissi-

ble hearsay, for their value to the truthfulness of the facts

asserted was not the critical issue for the court’s causation

analysis.

> It is undisputed ... that a terrorist attack is considered an ‘accident’

within the purview" of Article 17. Day v. Trans World Airlines, Inc., 538

F. 2d 31, 33 (2d Cir. 1975), cert. denied, 429 U.S. 890 (1976). See

Evangelinos v. Trans World Airlines, Inc., 550 F. 2d at 154; Krystal v.

British Overseas Airways Corp., 403 F. Supp. 1322, 1323 (C.D. Col. 1975);

(cont'd) Husserl v. Swiss Air Transport Co., 351 F. Supp. 702 (S.D.N.Y.

1972), aff'd, 485 F. 2d 1240 (2d cir. 1973)(per curiam).

IV. THE COURT OF APPEALS ERRED IN

DEEMING THE EXCITED UTTERANCE EX-

CEPTION TO THE HEARSAY RULE INAP-

PLICABLE TO MR. SAKARIA’S STATE-

MENTS TO MR. BAFITIS.

Assuming arguendo that the court of appeals’ hearsay

analysis had been appropriate, the court misinterpreted Fed. R.

Evid. 803(2) when it held that Mr. Sakaria’s statements to Mr.

Bafitis upon arriving in Athens were inadmissible hearsay. The

court’s refusal to accept Mr. Bafitis’ affidavit after acknowl-

edging the spontaneity of Mr. Sakaria’s statements and conclud-

ing that “deliberate fabrication is not likely" (8 F.3d at 172 n.

10, App. at 14a) is significant error warranting this Court’s

review.

In order for a statement to be considered under the

“excited utterance" exception to the hearsay rule, two criteria

must be satisfied. First, the declarant must have experienced

a startling event or condition, and second, he must have reacted

while under the stress or excitement of that event and not as the

result of reflection or fabrication. See J. Weinstein & M.

Berger, 4 Weinstein’s Evidence § 803(2)[01] at 87 (1993),

McCormick On Evidence § 297, at 704 (2d ed. 1972). There

can be no question that the first of these requirements is met

here. The captain’s announcement of an "armed altercation,"

the two-hour delay in a filled-to-capacity jetliner guarded by

armored security vehicles and a helicopter, and containment for

another two hours in a makeshift waiting area under armed

guard -- are events so unexpected and unusual that they surely

‘qualify as “startling.”

Second, Mr. Sakaria’s statements were made while

under the stress or excitement of these startling events. The

court of appeals improperly dismissed Mr. Sakaria’s statements

because they were made to Mr. Bafitis upon Mr. Sakaria’s

arrival in Athens and not to anyone at the time of the incident

in Rome. 8 F.3d at 173, App. at 15a. But Mr. Sakaria’s

;

)

reaction should hardly be surprising. He had expected to land

in Athens, but found himself, instead, in the aftermath of a

terrorist attack in Rome. Individual reactions to crises of this

nature would doubtless vary. The fact that Mr. Sakaria might

not have communicated his fears until he burst out emotionally

to his friend Mr. Bafitis, suggests that the trauma of the event

had persisted up to his arrival in Athens. The length of time

between the occurrence of an event and an excited utterance is

not critical if the declarant remains in an excited state. See

McCormick On Evidence § 297, at 706 ("Testimony that the

declarant still appeared ‘nervous’ or ‘distraught’ and that there

was a reasonable basis for continuing emotional upset will often

suffice" (footnote omitted). See also Morgan v. Foretich, 846

F. 2d 941, 947 (4th Cir. 1988).

As the Eighth Circuit has stated: “The lapse of time

between the startling event and the out-of-court statement,

although relevant, is not dispositive in the application of rule

803(2) ... Other facts to consider include the age of the

declarant, the physical and mental condition of the declarant,

the characteristics of the event, and the subject matter of the

statements." United States v. Iron Shell, 633 F. 2d 77, 85 (8th

Cir. 1980), cert. denied, 450 U.S. 1001 (1981).° In his excited

state, Mr. Sakaria recounted the events at his first opportunity

to relate them to someone he knew and trusted. See Morgan,

846 F. 2d at 947. The fact that Mr. Sakaria "told no one at

that time" is not dispositive, given the catastrophic nature of the

incident he had experienced. His statements fully satisfied the

long as the declarant, at the time of the utterance, was stiil in the throes of

the ‘exciting event’ and therefore not capable of reflective thought, and

sufficient foundation was laid to enable the trial court to reach this conclu-

sion, the statement is ... admissible"); Cole v. State, 818 S.W. 2d 573, 575

(Ark. 1991)(statement by mentally retarded woman on day following rape

incident admissible in view of victim’s limited mental faculties and excited

condition).

se it iia seth Shia le ll sdb eel wa iaadaaa nn tee

criteria of admissibility under Rule 803(2), and it was error for

the lower court to reject Mr. Bafitis’ affidavit as inadmissible

hearsay.

POET ATI.

CONCLUSION

For the foregoing reasons, the writ of certiorari should

be granted.

Respectfully submitted,

Jay S. Bybee Ronald D. Maines

6516 Millstone Drive Counsel of Record

Baton Rouge, LA 70808 Maines & Harshman, Chrtd.

(504) 388-8707 2300 M Street, N.W.

Suite 900

Washington, D.C. 20037

(202) 223-2817

Counsel for Petitioners,

Elpis Sakaria, et al.

March 22, 1994

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ELPIS SAKARIA, individually and as_)

personal representative of the Estate )

of Jagdish Sakaria, Deceased; )

ALEXANDER J. SAKARIA; RAJ J.)

SAKARIA; MARIA K. SAKARIA, )

Children of Jagdish Sakaria, Deceased. ) No. 92-1642

Plaintiffs-Appellants. )

v. )

)

TRANS WORLD AIRLINES,

Defendant- Appellee.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

M. J. Garbis, District Judge.

(CA-87-3462-MJG)

Argued: March 3, 1993

Decided: October 25, 1993

Before ERVIN, Chief Judge, PHILLIPS,

Circuit Judge, and HILL, Senior Judge of

the United States Court of Appeals for the

Eleventh Circuit, sitting by designation.

Affirmed by published opinion. Judge Phillips wrote the opinion,

in which Chief Judge Ervin and Senior Judge Hill joined.

COUNSEL

ARGUED: Nicholas Hamner Cobbs, LAW OFFICES OF

NICHOLAS H. COBBS, Washington, D.C., for Appellants. John

Niebrugge Romans, KATTEN, MUCHIN & ZAVIS, New York,

New York, for Appellee. ON BRIEF: Nicholas Gilman,

GILMAN, OLSON & PANGIA, Washington, D.C., for Appel-

lants. Raymond L. Mariani, KATTEN, MUCHIN & ZAVIS,

New York, New York, for Appellee.

OPINION

PHILLIPS, Circuit Judge:

Around a day and a half after completing his flight as

passenger on a TWA international flight from New York to

Athens, Greece, Jagdish Sakaria died of a heart attack. His widow

and children (the Sakarias) brought this diversity action against

TWA seeking damages for his death under Maryland wrongfu!

death and survival statutes and, by later procedural developments,

under the Warsaw Convention, alleging that the death occurred

as a result of trauma occasioned by events associated with a

terrorist attack in the Rome airport during the TWA flight’s

intermediate stop there. The district court dismissed all the claims

by summary judgment. We affirm, though on reasoning indepen-

dent of the district court’s.

Jagdish Sakaria decided to visit his children, then attending

school in Greece and living there with his wife’s parents, in

December of 1985. Acting on his behalf, Mrs. Sakaria contacted

TWA and requested a nonstop flight from New York to Athens

prior to Christmas. The TWA international ticketing agent told

her no such flights were available. When asked when the next

available flight was, the agent referred her to Flight 840, on

December 26. Although TWA’s timetable lists Flight 840 as

having a scheduled stopover (without saying where), TWA’s agent

made no mention of that fact, and Mrs. Sakaria didn’t inquire

about it. To take advantage of a coupon, Mrs. Sakaria and her

husband purchased the ticket through a local travel agent later that

same day. Neither ticket nor itinerary reflected the intermediate

stop in Rome.

On December 26 Mr. Sakaria took Flight 840, and as it

approached Rome’s Fiumicino Airport on the morning of Decem-

ber 27, terrorists attacked the TWA ticket counter and embarkation

area, leaving fourteen people dead and many others wounded.

Consequently, Fiumicino flight control forbade Flight 840 to make

its scheduled stop there, but when the plane was also denied

permission to land at nearby Capino and its captain made clear

that he lacked fuel to proceed further, Fiumicino flight control

reconsidered and directed the plane to land and park on a remote

section of the tarmac.

Once on the ground, the captain told his passengers of an

“armed altercation” at the airport and warned them that the aircraft

would be met by a security vehicle and held on the tarmac until

it was safe to approach the terminal. One armored vehicle

remained near the aircraft during this time, while another, together

with a helicopter, patrolled at a distance. Within three or four

minutes of landing the caption shut down the plane’s engines and

with them its air conditioning. Doors facing away from the

terminal were opened for ventilation, but it became "close and

warm" in the filled-to-capacity Boeing 747.

About two hours later, Flight 840’s passengers were bussed

to the terminal area and taken there to a makeshift waiting room.

The terminal proper was sealed and patrolled by armed security

personnel, though one passenger deposed that it would have been

physically possible to leave the building housing their waiting room

if the guards and their dogs had permitted it.

While in this waiting area, the passengers neither encountered

terrorists, viewed the attack’s aftermath, saw any bodies or

attendant medical personnel, nor heard any sounds associated with

the attack. In fact, those who deposed on the point perceived

themselves to be in no danger at all. After about two hours in

the holding area, Flight 840’s passengers including Sakaria were

bussed to the plane continuing Flight 840’s service to Athens.

They left the way they came in, not through the terminal proper,

where the terrorist attack had taken place. At no time during

Flight 840 did any passenger seek medical attention. Flight 840

continued on to Athens, arriving without further incident.

A family friend, Nick Bafitis, met Mr. Sakaria at the airport.

Mr. Sakaria looked pale, yellow, and "terrified," with black circles

under his swollen eyes. He held his throat and neck and com-

plained of thirst while recounting his experience in Rome in angry,

excited tones.'

Mr. Sakaria travelled with Bafitis to a home in Athens.

During an evening with the Bafitis family, Mr. Sakaria ate nothing

because he felt as if eating would make him vomit.

The following day Bafitis drove Mr. Sakaria the seven hours

from Athens to Volos, the remote village where his children

resided with his wife’s parents. During the trip Mr. Sakaria

continued to refuse food but drank great quantities of liquids. He

remained upset and broke out in tears while describing his

experience in Rome.

In Volos, Mr. Sakaria sought unsuccessfully to change his

return ticket to another airline before continuing on to his in-laws’

house. While there, he still refused to eat and several times broke

out in tears while describing events in Rome. He retired early,

and the following morning Mrs. Sakaria’s parents found Mr.

Sakaria dead in his bed. An autopsy identified the cause of death

1 The district court refused to consider the substance of these statements, as

recounted in an affidavit executed by Bafitis, because it concluded that the statements

were inadmissible hearsay. In the excluded portion of the statements allegedly made

to Bafitis, Mr. Sakaria described “the shooting” and spoke of “seeing bodies and

blood” when he went “upstairs to go to the bathroom.”

as acute myocardial infarction or, in layman’s terms, a major heart

attack.’

The Sakarias then brought his federal diversity action,

alleging state law survival and wrongful death claims against TWA.

Two theories were advanced. First, the Sakarias alleged that TWA

had breached a contract with Sakaria to fly him from New York

to Athens nonstop. Had it not done so, it was alleged, he never

would have experienced the trauma caused him by Flight 840’s

landing in Rome. Second, the Sakarias alleged that TWA

negligently had breached the duty of care it owed Sakaria by

permitting Flight 840 to stop in Rome despite TWA’s awareness

that a terrorist act had occurred there.’

In its answer, TWA denied it had contracted to fly Mr.

Sakaria to Athens nonstop and denied any negligence. It also set

up the Warsaw Convention,‘ as modified by the Montreal

Agreement,” as an affirmative defense limiting its liability.

2 The district court refused to consider the deposition testimony on causation

of a cardiologist, Dr. Brandis Marsh, retained by Mrs. Sakaria in related insurance

litigation because that testimony was based on the hearsay the court already had

excluded concerning Mr. Sakaria’s experience in Rome. Marsh opined that if Mr.

Sakaria had been forced to spend an hour and a half on a closed plane without

electricity before being expose to graphic evidence of the carnage caused by the

terrorist attack, his heart attack could probably be said to have been “provoked by

the circurnstances” of Flight 840. He renounced that conclusion when presented

with a scenario in which Mr. Sakaria neither saw the aftermath of the attack nor

was exposed to a “stifling environment” on the plane. J.A. 616-620.

3 The negligence theory later firmed up as an allegation that TWA failed to

comply with federal aircraft fueling requirements that would have given Flight 840

sufficient fuel to avoid landing in Rome.

a Convention for the Unification of Certain Rules Relating to International

Transportation by Air, done at Warsaw, Oct. 12, 1929, 49 Stat. 3000, T.S. No.

876, 137 L.N.T.S. 11, reprinted at 49 U.S.C. app. § 1502 note (1988).

5 Agreement Relating to Liability Limitations of the Warsaw Convention and

Hague Protocol, Agreement CAB 18900, Approved by Executive Order E-23680,

May 13, 1966 (Docket 17325) (1966), reprinted in Civil Aeronautics Board,

Aeronautical Statutes and Related Material 515-16 (1974).

Following discovery, TWA sought summary judgment on

all claims, contending that the causation element essential to each

was unsupported by an admissible evidence because Mr. Sakaria's

statements to Bafitis were inadmissible hearsay and the Sakarias’

medical expert predicated his essential causation opinion on that

hearsay. In addition, TWA submitted the deposition of a neurosur-

geon, Spiridon Koulouris, who had examined Mr. Sakaria over

the course of several years following a 1978 automobile accident

disabled from his job as an econometrician. Koulouris deposed

that Mr. Sakaria heard non-existent noises and was subject to

hallucinations and confabulations.* In response to TWA’s motion

for summary judgment, the Sakarias submitted the Bafitis affidavit

and another affidavit by Ayub Onmaya, a neurosurgeon who had

examined Mr. Sakaria twice following his 1978 accident, both

times before Koulouris began his four to six year interaction with

Mr. Sakaria. Bafitis stated by affidavit that Mr. Sakaria’s

automobile accident had affected his memory but that he “had

never known [Mr. Sakaria] to fabricate stories or to invent

accounts of things that never happened.” Onmaya opined that

based on his diagnosis of Mr. Sakaria’s condition "it [was] highly

unlikely that Mr. Sakaria experienced delusions, hallucinations,

or confabulations ont he date of the [terrorist] incident" and

concluded "to a reasonable degree of medical certainty” that "Mr.

Sakaria’s experience was based on reality."

The district court referred the case to a magistrate judge,

who concluded that "[t]he overwhelming evidence in this case

indicates that the events at issue did not occur as [Mrs. Sakaria]

contends" and recommended that summary judgment for TWA

be granted. In reaching this conclusion, the magistrate judge

refused to consider the alleged statements by Mr. Sakaria recounted

in the Bafitis affidavit, concluding that they were “uncorroborated

6 "Confabulation” is the “recitation of imaginary experiences to fill gaps in

memory.” B. Miller & C. Keane, Encyclopedia and Dictionary of Medicine, Nursing,

and Allied Health (3d ed. 1983). Dr. Koulouris described it as "generating or

reporting nonexistent situations, either totally nonexistent or mixed with real events.”

hearsay ... bearing no guarantees of trustworthiness." She also

denied the parties a hearing and recommended rejection of the

Sakarias’ request for additional discovery and leave to amend their

complaint to state expressly a cause of action under the Warsaw

Convention.

The Sakarias objected to the magistrate judge’s report,

including its refusal to consider a Warsaw Convention claim, and

requested a hearing. TWA countered their objections and opposed

the hearing. The district court granted summary judgment to TWA

after denying oral argument on the grounds that it “would not assist

the court in understanding, or deciding, the issues presented."

Essentially adopting the magistrate judge’s recommendations, the

court concluded that on the material facts not genuinely in issue,

the Sakarias’ state law wrongful death and survival claims failed

as a matter of law. The specific contract breach alleged, of failure

to fly non-stop to Athens, did not occur; TWA flew Mr. Sakaria

exactly as scheduled, to Athens with an intermediate stop at Rome.

There was no negligence in not having enough fuel to overfly

Tome, because that was a scheduled stop. Furthermore, even if

contract breach and/or negligence were assumed, neither as a

matter of law on the undisputed facts of record, could be found

a reasonably foreseeable cause of Mr. Sakaria’s death. As to the

possibility of liability under the Warsaw Convention, which the

magistrate judge had declined to consider because not expressly

pleaded by the Sakarias, the court held that it need not discuss"

whether the claim was before it, concluding summarily that on

the record before it, no such claim could be established in any

event.

This appeal followed.

For reasons that soon will be apparent, we need first to

determine whether at the time TWA’s summary judgment motion

was ruled upon, the Sakarias were entitled to have it considered

that their action included a Warsaw Convention claim in addition

to the expressly pleaded state-law wrongful death and survival

claims. As indicated, the magistrate judge declined to consider

that such a claim was in the case, because the Sakarias had not

expressly pleaded it, or to allow it to be added by amendment as

the Sakarias sought to do if it were considered necessary. And,

holding summarily that even if it were in the case, it failed on the

merits.

Of course the claim should have been considered to be in

the case at that point -- either because sufficiently well-pleaded

as was, or because, if it were thought needful for whatever reason

to have it expressly pleaded, the proffered amendment should have

been allowed in a proper exercise of discretion. Indeed, TWA

does not contest its consideration on this appeal.

The point does not require great discussion. Maybe even

before, but certainly after TWA raised the Warsaw Convention

as a limitation on its liability, every purpose of notice pleading

had been served.’ If an express pleading of the claim was then

thought necessary for res judicata or other purposes, it should have

been allowed as a matter of course. At that point TWA had itself

invoked the Convention (though for damage limitation purposes)

signalling that it was prepared to defend against such a claim.

It therefore was obvious that no prejudice to TWA or delay in

7 The confusion here undoubtedly stemmed -- though it need not have, see

Fed. R. Civ. P. 8(e)(2) (alternative, inconsistent claims and defenses allowable) -

claim created by the Warsaw Convention respecting harms occurring during

international] air transportation. See Part IV, supra. The Sakarias’ failure to proceed

initially , as they could have, on expressly pleaded alternative claims created a tactical

problem for TWA, which it properly resolved by raising the Warsaw Convention's

limitation on liability as an alternative defense available if that not yet expressly

pleaded claim rather than any of the state-law claims were to be established. Primary

fault for the resulting confusion can thus rightly be laid to the Sakarias, who only

belatedly sought to get on the alternative track. That, however, should not have

prevented the modest, non-prejudicial retrieval of the situation that they then sought,

see Fed. R. Civ. P. 1, SS tae

the claim, though summarily, on an “assuming-it’s-in-the-case" basis

the process would result. In those circumstances, the command

of Fed. R. Civ. P. 15(a) that leave to amend should be “freely

given when justice so requires" should have been followed -- if

that were thought a necessary condition to having the claim

considered on the merits.

We therefore hold that the Sakarias were entitled to have

their proffered Warsaw Convention claim considered on the merits

in the district court’s ruling on TWA’s motion for summary

judgment. This means in turn that, reviewing that ruling de novo,

we too must consider the claim on its merits.

Ill

Before getting to the merits of any of the claims, however,

we have to deal with one other procedural point.

The Sakarias contend that vacatur and remand is required

because of the refusal of both the magistrate judge and the district

judge to afford them an opportunity for oral hearing on TWA’s

motion for summary judgment. This, they contend, was an abuse

of discretion requiring vacatur and remand. We disagree.

While the importance of oral advocacy in general must of

course be recognized, it is our rule that there is "no absolute

requirement that a ruling on a motion for summary judgment be

preceded by a{n oral] hearing." Langham-Hill Petroleum, Inc.

v. Southern Fuels Co. , 813 F.2d 1327, 1330 (4th Cir. 1987). The

Sakarias contend, however, that in some situations the complexity

of issues may be such that the refusal to afford an oral hearing

is an abuse of discretion, and that this is such a case. They rely

principally on In re Paoli R.R. Yard PCB Litigation, 916 F.2d

829, 854 (3d Cir. 1990), in which the Third Circuit found such

an abuse. We may accept that such cases can exist, and that Paoli

properly identified one, but we don’t believe this one qualifies.

Paoli was a thirty-eight plaintiff mass tort action against a

railroad alleging multiple-party injuries from PCB exposure; this

10a

is essentially a two-party lawsuit in which damages are sought for

the death of one person. The need for oral testimony in Paoli

was thought to arise from the complexity and volume of expert

testimony related to the levels of toxic exposure involved and to

the causal link between that exposure and the many plaintiffs’

injuries. The resulting difficulty was compounded by discovery

limitations that curtailed plaintiffs’ ability to challenge the critical

opinions of defense experts except by written and oral advocacy.

This case has neither of those critical features. The Sakarias

had had ample opportunity to cross-examine for the record all of

TWA’s causation experts. They’d not been prevented from

developing their own expert opinion evidence on causation, nor

such lay testimony by fellow-passengers as they desired. They’d

had ample opportunity to resist summary judgment by written

arguments.

The resulting summary judgment record was thus a fairly

developed and argued one. It could not have been added to

substantively by oral argument. And while, as probably is always

the case to some extent, oral advocacy may have been able to

present the Sakarias’ position somewhat more forcefully, the issues

raised were not -- unlike those in Paoli -- such that they could

only fairly be presented by oral argument.

We therefore conclude that the district court did not abuse

its discretion in declining to conduct an oral hearing before ruling

on TWA’s motion for summary judgment.

Turning to‘the merits, we first consider the Sakarias’ Warsaw

Convention claim. Article 17 of the Warsaw Convention provides

that in respect of international air transportation

[t)he carrier is 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

lla

which caused the damage so sustained took place on

board the aircraft or in the course of any of the opera-

tions of embarking or disembarking.

It is now settled that this treaty provision provides an independent

federal cause of action in situations where it applies. Benjamins

v. British European Airways, 572 F.2d 913, 919 (2d Cir. 1978),

cert. denied, 439 U.S. 1114 (1979). As do federal common law

tort claims generally, it survives the death of the victim despite

the absence of a specific statutory command to that effect. Jn re

Mexico City Aircrash of October 31, 179, 708 F.2d 400, 415 (9th

Cir. 1983); see Moragne v. States Marine Lines, Inc. , 398 U.S.

375 (1970).

There is then the question of the nature of the claim and of

its applicability to the facts of this case, as developed in the

summary judgment record. As interpreted by the courts, the claim

created is one of strict, but limited, liability, the one having been

traded off for the other in the treaty negotiation process. See In

re Air Disaster at Lockerbie, Scotland, 928 F.2d 1267, 1271 (2d

Cir.) cert. denied, 112 S.Ct. 331 (1991). In addition to the

international flight predicate, the essential elements of the claim

are thus (1) an "accident," that (2) "took place on board the aircraft

or in the course of any of the operations of embarking or disem-

barking," and that (3) “caused” the death, wounding or other

bodily injury of a passenger. By judicial interpretation, "accident"

refers to the cause of injury rather than the injury itself, and

consists of "an unexpected or unusual event or happening that is

external to the passengers." Air France v. Saks, 470 U.S. 392,

405 (1984), a definition that excludes injuries resulting from “a

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

expected operation of aircraft." Id. at 406.

To some extent, each of these elements of the claim is the

subject of dispute on this appeal. As to the first -- whether an

"accident" occurred -- the Sakarias identify two events that they

contend either independently or in combination qualify: Mr.

Sakaria’s hour-and-a-half to two hour confinement in the

Se ee

12a

unairconditioned aircraft while under the emotional stress of

knowing that it was caused by “an altercation" in the terminal

requiring security precautions and his later exposure to the sight

of the covered bodies of persons killed in the terrorist attack.

As to the first of these events, the prolonged confinement

in the aircraft, TWA contends that as a matter of law it is not the

type of unusual or unexpected event or happening that is considered

an “accident” within the meaning of Article 17 of the Warsaw

Convention. As to the second, the alleged sighting of the terrorist

attack’s aftermath, TWA has two basic contentions: the proffered

evidence of its occurrence was properly disregarded as inadmissible

hearsay, and in any event was too shaky and questionable to raise

a genuine issue of fact, and, alternatively, if the sighting did occur

as alleged, it could only have done so by conduct of Sakaria that

took him outside the process of "disembarkation," hence outside

the temporal/spatial "on-board, etc." limitation imposed by the

claim’s second element.

As to the causation element, the parties essentially dispute

the admissibility, and, even if admissible, adequacy of the

Sakarias’ causation evidence to raise a genuine issue. TWA says

that the only such evidence proffered other than that of the

temporal sequence of flight and death, was that of Dr. Marsh,

whose causation opinion concededly was based on the rightly

excluded evidence of Sakaria’s alleged account to Bafitis, hence

was inadequate to raise a genuine issue. On this basis, TWA

contends (by necessary implication) that even if either or both the

events relied on by the Sakarias as Warsaw Convention "accidents"

qualify as such, the inadequacy of the proffered evidence of

proximate causation between those "accidents" and Sakaria’s death

entitled it to judgment as a matter of law.

These conflicting contentions raise legal issues concerning

the Warsaw Convention’s coverage that are ones of first impression

in this circuit. Regrettably, as indicated, the magistrate judge did

not address them at all, and the district court, only contingently

13a

and cursorily.* Though they properly should have been more fully

considered by the district court whose judgment of dismissal we

review, our review is de novo, Atlas Machine and Iron Works,

Inc. v. Bethlehem Steel Corp. , 986 F.2d 709, 712 (4th Cir. 1993),

hence not limited to the scope of that court’s consideration.

On the basis of our independent review of the summary

judgment record and our consideration of the written and oral

arguments of counsel on this appeal, we have concluded that the

Warsaw Convention claim was properly dismissed by summary

judgment.

First off, we think the district court properly declined to

consider as part of the summary judgment record the substance

of the statements ascribed to Mr. Sakaria in the Bafitis affidavit.

To be entitled to consideration on summary judgment motions,

facts set forth in affidavits must be "such ... as would be admissi-

ble in advance." Fed. R. Civ. P. 56(e). The substance of the

Sakaria account in the Bafitis affidavit was of course hearsay

whose admission obviously would have affected a substantial right

of TWA, see Fed. R. Evid. 103(a), so that its admissibility as

evidence depended upon bringing it within one of the specific or

the residual exception to the hearsay rule. On this appeal, the

Sakarias assign as error the district court’s refusal to find this

proffered evidence admissible under the "excited utterance"

8 While asserting that there were “several” bases for concluding that any Warsaw

Convention claim in the case could not be established, the court expressly identified

only one as “obvious” and sufficient. This, apparently, was that without benefit

of Sakaria’s alleged accounts of the events in Rome, it could not be established that

he was “injured on board the airplane or in the course of any operation of embarking

or disembarking the airplane or in the course of any operation of embarking or

disembarking,” which the court understood to be required by the Convention. J.A.

18. It’s not possible to tell from this just what deficiency was being identified. The

requirement is not that “injury” shall have occurred “on board ... or in the course

---", but that the causal “accident” shall have occurred then and there. Whether

this involved misapprehension on this critical point is not clear but is irrelevant to

our de novo review.

l4a

exception of Fed. R. Evid. 803(2).° We find no error in that

ruling.

Rule 803(2) excepts from the hearsay rule statements relating

to a startling event or condition while the declarant was under the

stress of excitement caused by the event or condition. The theory

of course is that the state of excitement prompted by such events

sufficiently guarantees unreflective spontaneity in hearsay

statements describing the events to supply the internal trustworthi-

ness that cross-examination is not available to test. See generally

McCormick on Evidence, § 272 (4th ed. 1992). There are any

number of reasons why this generally valid theory of trustworthi-

ness by virtue of excited spontaneity may be found unsupported

in particular cases." We think several were present here that

warranted refusal to apply the exception. Foremost was the

evidence before the court -- uncontradicted in its essence, though

challenged in some details -- that since a mentally incapacitating

illness in 1978, Mr. Sakaria had been subject to hallucinatory

misperceptions of reality in precisely the sort of situation that

developed here. His wife, for example, conceded in deposition

that upon viewing television reports of the Iran-Iraq war, he

_ imagined himself to be threatened by the far away events being

depicted. J.A. 192-197. The possibility that hallucination rather

than spontaneity may have drive Sakaria’s alleged account of

events in Rome, no matter how excitedly given, was strengthened

9 The Sakarias also suggested that there might be “other exceptions” that

warranted admission -- presumably the "present sense impression” exception of Rule

803(1) and the "residual exception” of Rule 803(24). But they have only argued

specifically for the “excited utterance” exception on this appeal, and although the

district court ruled out both those other exceptions, we don’t discuss them beyond

noting that if the “excited utterance” exception doesn’t apply here, neither would

those others.

10 Mainly because a too-long lapse of time is thought to have permitted

excitement to die allowing reflection or fabrication to take over. See, ¢.g., Morgan

v. Foretich, 846 F.2d 941 (4th Cir. 1988). But even where deliberate fabrication

is not likely — as certainly is the case here -- there may well be other reasons to

find spontaneity, even if maintained in the interval, not a sufficient safeguard against

inaccuracy.

iat sieaetanenetienmaimainaiiie

15a

by other indications in the record. Despite full Opportunity to

develop corroborating evidence of Sakaria’s having seen any of

the immediate results of the terrorist attack in the Rome airport,

none was presented. From the absence of any such obviously vital

corroboration of Sakaria’s alleged account, the district court was

entitled to assume that no other passenger to have left the waiting

room in which all were told to stay; and that Sakaria told no one

at that time -- when his excitement presumably would have been

at its height -- about having had any such experience. Confronted

with this situation, the district court was amply justified in

declining to consider this highly questionable hearsay account going

to so critical an issue but lacking a shred of corroboration of its

trustworthiness.

With this account of the sighting of attack victims out of

the picture as an “accident” causing Sakaria’s death,'' we are left

with the period of uncomfortable confinement in the aircraft by

one knowing that it was caused by an “altercation” that justified

visible security precautions. Whether this "event or happening"

considered in isolation could be held as a matter of law to be so

“unusual or unexpected” in international air transportation as to

constitute an “accident” under the Saks definition raises interesting

questions by no means easy to resolve." We need not make the

effort, for we hold that even if it were, the summary judgment

record does not present a genuine issue of material fact as to the

required link of causation between that event and Sakaria’s death.

As earlier indicated, the only evidence proffered in support of the

11 This avoids any necessity to deal with TWA's alternative contention that even

if the account of this event were considered, it could not be found an “accident”

because, by Sakaria’s own purported account, it occurred while he wasn’t "embarking

or disembarking” but had taken hirnself out of TWA’s control. See Day v. TWA,

528 F.2d 31 Qd Cir. 1976) (carrier control over passenger a factor in assessing

whether passenger engaged in process of embarking or disembarking).

12 Among them: whether in assessing the “usual or unusual” character of this

“event,” the terrorist attack, which didn’t “take place on board,” should nevertheless

be considered a part of that event: whether, if not, the prolonged wait itself was

no “unusual or unexpected” an event (whatever its immediate cause) in contemporary

air travel, as to constitute an “accident” under Saks.

16a

required causation, aside from the raw temporal sequence of the

two events, was the deposition testimony of the Sakarias’ medical

expert, Marsh. His original opinion that the totality of the event

as allegedly recounted by Sakaria to Bafitis probably provoked

the heart attack was effectively renounced once the possible cause

was limited to the prolonged wait in the aircraft. J.A. 616-620.

Maybe even in its original form, and certainly in its final, Marsh’s

testimony on this issue would not suffice under our standard to

support the requisite finding of causation, as to which the Sakarias

of course had the burden of proof. In a long line of decisions in

this circuit, we have emphasized that proof of causation must be

such as to suggest “probability” rather than mere "possibility,"

precisely to guard against raw speculation by the fact-finder.

Lovelace v. Sherwin-Williams Co. ,681 F.2d 230, 241-42 (4th Cir.

1982) (motivation in ADEA case); Wratchford v. S.J. Groves &

Sons, Co. , 405 F.2d 1061, 1066 (4th Cir. 1969) (cause of personal

injury); Ford Motor Co. v. McDavid, 259 F.2d 261, 266 (4th Cir.

1958) (cause in products liability case); Ralston Purina Co. v.

Edmunds, 241 F.2d 164, 168 (4th Cir. 1957) (same). Where,

as here, resolution of the causation issue is dependent upon expert

opinion testimony, it must meet that standard, and Dr. Marsh’s

revised opinion testimony, when based upon the only admissible

evidence of “accident” in the summary judgment record, see

Newman v. Hy-Way Heat Systems, Inc. , 789 F.2d 269 270 (4th

Cir. 1986), does not do so.

Accordingly, we affirm dismissal of the Warsaw Convention

claim by summary judgment.

Turning to the state-law survival and wrong death claims,

we first note our assumption, without deciding the issue, that they

are not preempted by the Warsaw Convention claim. While it

has been held that where the Warsaw Convention claim provides

a remedy, the remedy is exclusive of any others, see In re Air

Disaster at Lockerbie, Scotland, 928 F.2d 1267, 1275 (2d Cir.)

cert. denied, 112 S.Ct. 331 (1991), the Supreme Court has

17a

reserved decision on whether the scope of exclusivity might be

even wider than that of liability. See Saks v. Air France, 470 U.S.

at 408. As indicated, without deciding the issue, we can assume

for purposes of this case that, at least where the Warsaw Conven-

tion claim has been found not available, parallel state-law claims

such as those here in issue are not preempted.

Addressing those claims here, we affirm their dismissals

by summary judgment. The reasons are plain, as given by the

district court. As to the negligence theory advanced under both

the wrongful death and survival claims, even if TWA were

negligent somehow is failing to provide enough fuel to fly past

Rome, the evidence would not support a finding or proximate

causation between that negligence and Sakaria’s death. The

evidence founders not only for the same reason that the Warsaw

Convention claim foundered for insufficiency of proof of causation

between the Rome law-over events and Sakaria’s death, but for

additional infirmities related to the even more attenuated link back

to TWA’s alleged act of culpability in fueling the flight.

The same infirmity defeats the contract claim," though here

through the ancient parallel foreseeability principle of Hadley v.

Baxendale, 9 Ex. 341, 156 Eng. Rep. 145 (1954). Even if there

were a contract breach in stopping over in Rome, the risk that

Mr. Sakaria’s death would somehow be caused by that event in

conjunction with a terrorist attack at that very time is obviously

far too remote to allow recovery in contract.

AFFIRMED

13 There could be another infirmity in the “contract” theory in the wrongful

death claim. The general rule is that breach of contract claims don’t lie under

wrongful death statutes, that those statutes contemplate only tort as a basis for liability.

See Prosser and Keeton on Torts, § 127. We need not address whether that is the

tule in Maryland in view of our disposition on other grounds.

18a

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FILED

November 22, 1993

No. 92-1642

CA-87-3462-MJG

ELPIS SAKARIA, individually and as personal

representative of the Estate of Jagdish

Sakaria, Deceased; ALEXANDER J. SAKARIA;

RAJ J. SAKARIA; MARIA K. SAKARIA, Children

of Jagdish Sakaria, Deceased

Plaintiffs - Appellants

Vv.

TRANS WORLD AIRLINES

Defendant - Appellee

On Petition for Rehearing with

Suggestion for Rehearing In Banc

The appellants’ petition for rehearing and suggestion for

rehearing in banc were submitted to this Court. As no member

of this Court or the panel requested a poll on the suggestion for

rehearing in banc, and

As the panel considered the petition for rehearing and is of

the opinion that it should be denied,

IT IS ORDERED that the petition for rehearing and

suggestion for rehearing in banc are denied.

For the Court,

/s/ Bert M. Montague _

CLERK

19a

December 23, 1988

William F. Huffman

316 Hannes Street

Silver Spring, Maryland 20901

Dear Mr. Huffman:

I am pleased to respond to your letter of December 12, 1988,

referable to Jagdish Babu Sakaria. For the sake of the record it

may be appropriate to inventory the documents I have seen. These

include your letter, a translation of the "Forensic Report of

Necropsy and Necrotomy," records from Dr. R. Simon dated 20

July 1987 and September 25, 1985, and statements from a Mr.

Bafitis (August 9, 1986), and Labros Stamoulis (August 9, 1986).

In brief summary, Mr. Sakaria apparently was a 49 year old who

was forced to spend one and : 2 half hours in a closed plane which

apparently had no electrical supply at the Rome airport in

December of 1985. This delay was caused by a terrorist bombing

at the Rome airport. When the patient was finally permitted to

disembark from his plane he had to walk through the airport where

he saw rather graphic evidence of the carnage caused by the

bombing. The issue at hand relates to whether the occurrence

of his lethal heart attack was “accidental”.

Unfortunately, the post mortem report is not adequately detailed

to permit a more precise estimate of the time of the infarction to

be made. In turn, we must rely on other information. In this

respect. I am particularly impressed by the statement of Mr.

Bafitis. His description of the appearance of Mr. Sakaria when

the later depianed in Athens is wholly consistent with the appear-

ance of a patient who has sustained recently an acute myocardial

infarction. Mr. Bafitis reports that Mr. Sakaria complained of

discomfort in his throat, described as a sense of dryness. While

it is more characteristic for patients to complain of discomfort or

pain, the nature of that discomfort sometimes is very difficult for

them to describe specifically, and this would not be the first time

20a

I have heard it called "dryness". Obviously, during the flight from

Rome to Athens, Mr. Sakaria would have had the opportunity to

quench his thirst if the "dryness" had simply been dryness.

Equally clearly, his throat continued to bother him. I find the

observations of Mr. Bafitis and the complaints of symptoms

referable to the throat compelling, given the presence of a grossly

evident heart attack on the post mortem. While I obviously cannot

make a diagnosis with absolute confidence, I believe, to a

reasonable degree of medical certainty, this patient sustained an

infarction at some time between his arrival in Rome and his arrival

in Athens.

Let me add an additional observation based on personal experience

rather than on medical training. For various reasons, I have had

occasion previously in my life to spend time in a commercial

aircraft parked in full sun light on a runway when airconditioning

and air circulation systems were inoperative. The experience was

an exceedingly unpleasant and stressful one. I have no doubt that

the stress generated by confinement under those circumstances

could have severe adverse implications in a patient predisposed

for some reason to a heart attack. The additional stress of being

exposed to the aftermath of the terrorist attack in the airport would,

of course, contribute further to that stress. The circumstances

described plausibly could cause either a fracture of a preexisting

coronary lesion with secondary occlusion or primary coronary

spasm with occlusion and infarction.

In summary, therefore, I find the evidence more than adequate

to come to a conclusion that the patient died as a result of a rhythm

disorder caused by a myocardial infarction provoked by the

circumstances of travel. I believe those statements can be made

to a reasonable degree of medical certainty. In turn, I would infer,

within my understanding of the meaning of the word, that this

death was “accidental”.

2la

I trust the above comments are adequately clear. If further

discussion is necessary, please let me know.

Sincerely,

/s/ H. Brandis Marsh, MD _

H. Brandis Marsh, M.D.

HBM: kaw

22a

UNITED STATES DISTRICT COURT

DISTRICT OF MARYLAND

ELPIS SAKARIA

Plaintiff

vs. : HM-87-3302

ALLSTATE LIFE INSURANCE CO.

Defendant :

Friday, June 16, 1989

Washington, D.C.

Deposition of:

H. BRANDIS MARSH, M.D.

was Called for examination by counsel for the defendant at the

Washington Hospital Center, 106 Irving Street, N.W., Washington,

D.C., commencing 10:00 a.m., before Elvia Faye Grant a notary

public for the District of Columbia.

*“* *

EXAMINATION BY [DEFENDANT’S COUNSEL]:

x** *

Q. Did you in arriving at your opinions in your report rely

in any way in what is contained in this statement of Mr. Bafitis?

A. I sincerely thought that the description of the gentle-

man’s appearance strongly supported the presumption that he had

already sustained the heart attack or was in the process of

sustaining the heart attack at that point. I think that I found that

23a

quite useful. Whether necessary or not is a different issue, but

certainly it added to the components of the situation.

Q. Have you ever talked to Mr. Bafitis?

A. No, sir.

Q. You would have no way of knowing whether this

statement in fact fairly represents what he may have said to

whoever the unidentified transcriber was; is that correct?

A. I would have no way of knowing.

** *

Q. If you learned that in fact M. Sakaria never heard any

hand grenades, never saw r heard of any automatic guns, never

saw any bodies, never saw any blood, and in fact all of that was

untrue, would that affect any opinion you’ve given based on

anything Mr. Sakaria had said to anyone?

A. Yes. If that was all untrue, I think, clearly that could

change one’s opinion. Sure.

Q. Would that reduce your comfort level, if you will, of

your opinion to a degree of less than medical certainty?

A. Again, I guess I would have to have your specific

hypothetical to be entirely comfortable in responding to that

question. I don’t think I read it then and I don’t read it now as

implying that he made a statement that he was exposed to gunfire

and grenades and necessarily heard them. I would read this as

simply implying that he was aware of what the terrorists had, not

necessarily that he was directly exposed.

I read it to imply that he saw bodies. He saw blood.

He saw damage in the airport. Yes. If that turned out not to be

true and if it turned out not to be true that he really was kept on

24a

an airplane for an hour and a half in an uncomfortable environment

et cetera, et cetera, yeah, I don’t think I could make the same

conclusion at that point.

** *

Q. Let me suggest this scenario to you. He’s on an

airplane 30 minutes away from the airport when the shooting is

all over. He has another 30 minutes of lying, if you will, to get

to the airport. He sits in a plane for an hour or an hour and a

half. He never sees the carnage. He never sees any bodies. He

never sees any blood. He’s not even taken through the area where

the incident occurred. He hears no shooting. He hears no

grenades -- no nothing. He’s then put on another plane and goes

to Athens. Does that affect any -- And let’s assume that scenario

is correct. Does that affect any of the opinions that you have given

in your letter?

A. Again, let me add one additional presumption, which

I think is in the spirit of your question; and that is that that hour

and a half on the runway is not one characterized by a heat stifling

environment et cetera, et cetera.

Q. Yes. Let’s assume that’s true. And let’s add that the

mood on the plane was quiet and calm.

A. Yes. That hypothetical would clearly lead me to a very

different opinion.

Q. And to an opinion sufficiently different that you would

no longer subscribe to the opinion in your letter of December 23,

1988?

A. I think that’s a fair statement. Yes. Now, to be sure

that answer is clear: I would not subscribe to the opinion expressed

in that letter.

25a

Q. Right. Well, it’s fair to say this. I mean, your opinion

was based on what you understand the various facts to be?

A. Yes, sir.

Q. And that was, in turn, based on the documents provided

to you by Mr. Huffman’s letter?

A. Yes, sir.

Q. Have you ever read any reports or medical notes or

anything from a Dr. Koularis relating to Mr. Sakaria?

A. Not knowingly. Again, if the documents are not here

I have not seen them.

* * *

There is one additional aspect that I think that I did not

refer to in my letter that I should have and that I noticed in going

through the records today. I have to temper that somewhat. The

letter that you referred to in French that we have an English

translation in longhand at the bottom, if it’s accepted as being a

clearly dependable piece of information, carries the statement --

and, obviously, I read from the translation and not from the French

-- "The coronary arteries had a normal appearance on macroscopic

examination."

I one accepts that observation as being accurate, which

is to say that the coronary arteries were examined in adequate

detail to make the conclusion that is stated, then we have a

situation which becomes somewhat less unusual. Most patients

who have heart attacks or myocardial infarctions have areas of

blood vessels of coronary artery that are narrowed significantly

and, in turn, clot that blood vessel in a location related to one of

these areas of abnormality. The clot cuts off blood flow and the

heart muscle dies; that’s the process of heart attack.

26a

In the absence of plague and the absence of a clot, a

heart attack occurs because of spasm. We know that that happens

in some small percentage of patients. Because the wall of the

blood vessel is muscle the wall can contract and the vessel can

close off as if it were having a charley horse, and we know also

that that can cause heart attacks. The importance of the distinction

is that it takes a much greater level, shall we say, of unusual event

to cause that kind of a sequence. And it becomes, in turn, at least

in my view, that there’s much more of a support of the presump-

tion that the occurrence of this heart attack occurred because of

the unusual circumstances of this trip. I think that to me at least

would support -- would add additional substance nd credence to

the presumption.

Q. Would it be fair to say that in the conditions, which

you have just described were sudden significant events, cause this

charley horse, if you will, affect?

A. Yes.

Q. Could that be induced in one’s own mind as opposed

to actually having seen and heard certain things?

A. Certainly.

Q. So, would it be possible that in fact even if he didn’t

see any of this or hear any of this or have any of the experience

which has been described in the statements, he could have induced

it on himself through his own mind?

A. I think you could argue plausibly that that sequence

could occur.

Q. And in your view would that be an accidental death?

A. Well, I think, ifthe reason that it occurred in his mind

had to do with exposure to, again, events of this kind or knowledge

27a

or et cetera, then that’s the elements of random chance and of

accident. It’s still the inducing principle.

EXAMINATION BY [PLAINTIFFS’ COUNSEL]:

** *

Q. From the report of Mr. Bafitis of the substantial change

in color of Mr. Sakaria’s face and his eyes and his grasping at

his throat, are those indications of trauma having occurred?

A. I’m not sure that I follow what you mean by the word

trauma. In that situation there are things that people can do when

they have been exposed to a substantial level of stress at one time

or another. There are things that I think are wholly consistent

with the expected behavior of a patient who has recently sustained

a heart attack for whatever the cause of the heart attack.

Q. That’s what I’m arriving at, Doctor.

A. Ifyou mean trauma to the heart in the form of a heart

attack then I will say, yes, absolutely.

Q. What’s your definition of an experienced traveler?

A. Well, I would assume what we’re talking about is a

businessman who has to travel regularly on business, and for that

purpose I suppose we would assume a minimum of four to five

extended trips a year and probably more like once a month or

something on that order.

Q. So, would you agree that a person that takes one trip

a year or one every two years is not really an experienced traveler?

A. I would not think of him as being an experienced

traveler. No, sir.

28a

Q. So, a nonexperienced traveler involved in an unexpected

or unplanned stopover anywhere, would that cause any stress?

A. It certainly could. Yes, sir.

Q. Did you know that his stopover in Rome was unex-

pected?

A. Il inferred from the documents that he was in Rome

longer than he had expected to be. I have assumed that his origina]

travel plans required that he stop in Rome but, presumably, under

different circumstances, whether a continuing flight or a change

of planes or whatever. But, I have assumed that the documents

implied a longer than expected stopover. In any event, a stopover

that was substantially different in character from what one would

normally expect.

Q. Well, if you were to know that the stopover was entirely

unplanned, at least from his standpoint, and a change of planes

was entirely unplanned, would this have caused him or anybody

else any uneasiness or stress?

A. Yes, I think it would.

Q. Is it your opinion then, Dr. Marsh, that this heart attack

and subsequent death was caused by some sort of trauma?

A. Yes, sir.

Q. And lacking anything that happened in Athens r on route

to the little town of his wife’s parents, is it safe to assume the

trauma, if any, must have occurred during his transit in the plane?

A. Yes, sir.

Q. So, assuming then that there was trauma f some sort

during the period of travel, is it your pinion then that whatever

happened which caused his death was an accident?

29a

A. I think it was. Yes, sir. Making those assumptions.

MR. HUFFMAN: No further questions.

FURTHER EXAMINATION BY [DEFENDANT’S

COUNSEL]:

Q. Let me go back over that. Could the events which

caused the hart attack, in which you say there was trauma which

caused the heart attack and death, could that trauma have occurred

before he got on the plane?

A. I suppose it could have, but I think it’s very unlikely.

Again, I have some difficulty in being precise because you have

raised questions about whether my presumptions of time intervals

have been entirely fair. And the actual time intervals have some

bearing on the issue of when these different events plausibly could

have occurred.

Q. So, the traumatic event, if there was one, could have

occurred before he got on the plane that took him to Rome?

A. Conceivably. You know, again, I don’t think it’s likely

but it’s conceivable.

***

30a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

ELPIS SAKARIA, et al.,

Plaintiffs,

-against- ; Civil Action No.

MJG-87-3462

TRANS WORLD

AIRLINES, INC.

Defendant

NICHOLAS M. BAFITIS deposes as follows:

1. I reside at 4915 Lincoln Avenue, Beltsville, Mary-

land. I am a close family friend of Elpis Sakaria and the other

plaintiffs in this action. I was also a close friend of the deced-

ent, Jagdish Sakaria. I am the godfather of Mr. Sakaria’s son,

Alexander. Although I speak a little English, I am not fluent in

English. My conversations with Mr. Sakaria and his wife normally

were in Greek.

2. On December 27, 1985 I was in Greece with my family,

visiting my daughter, who was staying in Greece at the time. On

the afternoon of December 27 I met Mr. Sakaria at the airport

in Athens. His wife, Elpis Sakaria, had made arrangements for

me to meet her husband before I left the United States on

December 21.

3. When I arrived at the airport I was told that Mr.

Sakaria’s flight was delayed. I was surprised to discover that

his flight had stopped in Rome. I knew that Mr. Sakaria al-

ways took nonstop flights and avoided flights with intermedi-

ate stops or transfers if he possibly could. I assumed the reason he

flew out of New York, rather than Washington, D.C., was so he

could get a nonstop flight.

3la

4. When Mr. Sakaria’s flight arrived I observed that

many of the passengers coming out of the customs area were

talking excitedly about unusual things happening in Rome.

When Mr. Sakaria came out, I could tell immediately that

something had happened to him. He looked extremely pale

and yellow, with black circles under his eyes. His eyes were

swollen and seemed to glare. He was holding on to his throat

and neck. He looked terrified.

5. As soon as Mr. Sakaria recognized me he started talking

in Greek about the events in Rome. The first thing he said was:

"Did you hear what happened to us in Rome." He described the

shooting and talked about talked about [sic] seeing bodies and

blood. His tone was extremely excited. He also said he was

extremely thirsty because the airplane had been parked on the field

for a long time with the air conditioning off. He said it had been

“suffocating.”

6. I asked Mr. Sakaria why he had landed in Rome

rather than taking a direct flight. He became very angry. He

said he didn’t intend to land in Rome and that his flight was

supposed to be a nonstop flight.

7. Mr. Sakaria kept saying: "What was I doing in

Rome?" He wanted to call his wife immediately. I persuaded

him to wait until we got to my mother’s house, in Athens,

where I was staying with my family. When we got there I

placed the call to Mrs. Sakaria and gave her a brief account of

how he had landed in Rome. She was incredulous. She told

me she had booked Mr. Sakaria on a nonstop flight to Athens.

Mr. Sakaria then talked to his wife excitedly about how he had

landed in Rome and how terrible things had happened there. I

urged Mr. Sakaria to calm down and persuaded him to come join

the family in the dining room for dinner.

8. Mr. Sakaria refused to eat any food for dinner. He

told the family he could not eat without throwing up. At this point

my father asked: “Did all this take place right in front of you."

32a

He used the plural form of "you," referring to all of the passen-

gers. Mr. Sakaria replied: “No, but I saw it all when I went to

the bathroom upstairs to the other floor. And then, when I saw

the bodies and the blood, I vomited." The following day he again

talked about how he had seen the bodies when he went upstairs

to go to the bathroom. He was asked by one of his nephews if

he could tell whether any of the bodies were Greek persons. He

replied emotionally that the bodies were “covered up” but that

they were "human." (As a result of an automobile accident in

1978 Mr. Sakaria had problems with control of his bowels and

bladder and could not wait if he needed to go to the bathroom.)

9. Although the family attempted to change the con-

versation many times, Mr. Sakaria insisted on talking about the

events in Rome. He repeatedly thanked God that he was alive. He

exclaimed: "You cannot understand what bodies and what blood

I saw!"

10. Mr. Sakaria related that the Captain had told the

passengers that there was fighting in the airport. Immediately Mr.

Sakaria becam? ne: vous and his throat became dry. He said the

airplane was then parked on the field and the air conditioning was

shut off. Although they opened three doors for ventilation, it was

hot and “suffocating” inside the airplane. Mr. Sakaria said he

got up and walked to one of the open doors to get air. He saw

an armored vehicle there and soldiers with machine guns and hand

grenades. He was extremely frightened because he thought they

might be going to attack the plane. Mr. Sakaria had a radio with

him on the airplane. He said that he and the other passengers

heard about the attack on radios.

11. The following day my family and I took Mr. Sakaria

to Volos, a drive that took seven hours because we made fre-

quent stops. Although Mr. Sakacia continued to refuse any food,

he drank large quantities of liquids. He continued to talk about

the incident in Rome, thanking God that he was alive, and

describing the bodies and the blood. At times, he broke out in

tears.

33a

12. When we arrived in Volos shortly before 2:30 p.m.,

Mr. Sakaria insisted on going to a travel agency to change his

return ticket to another airline. He was very angry that the

TWA flight had stopped in Rome when he had ordered a non-

stop flight. We stopped at a travel agency, but it was

closed. After waiting a while, I persuaded him to change his

reservation at a later time. We proceeded to a bakery, owned

by Mrs. Sakaria’s sister, Eleni Fania, where Mr. Sakaria’s son

was staying. From there we went in two cars to Gazea, a

village about 17 miles from Volos where Mrs. Sakaria’s parents

lived and where Mr. Sakaria’s daughter was staying.

13. We had dinner that night at the house of Mrs. Sakaria’s

parents, Lambros and Maria Stamoulis. Mr. Sakaria continued

to refuse to eat, protesting that he would vomit as he had at the

airport. Several times during dinner he broke out in tears. He

continued talking about the accident, talking about how lucky he

was and how he would have been shot, too, if the plane had

arrived only a little bit earlier.

14. The next morning I was up early with my fam:!y to

go visit a monasteries [sic] in Meteora. Mr. Sakaria was

apparently still asleep, and I planned to leave without him.

However, Mrs. Stamoulis asked me to take Mr. Sakaria to see

a doctor in Volos on our way to Meteora. She went to wake

him up and found that he would not move. He was cold to the

touch and had no breath to fog a mirror.

15. I took Mr. Sakaria’s body to the hospital in Volos.

A doctor there pronounced him dead. The doctor told me he had

probably died sometime before midnight.

16. I have known Mr. Sakaria since 1967. I saw him

frequently in the years and months preceding his death.

Although an automobile accident in 1978 affected Mr.

Sakaria’s memory, I have never known him to fabricate stories

or to invent accounts of things that never happened. I also

never observed him to be as excited as he was about the events

34a

in Rome. Normally he was a quiet person who had little to

say. For these reasons, I am convinced that Mr. Sakaria was

talking about events that really happened and that he was not

imagining his account of what occurred.

17. I have personal knowledge of the facts set forth

above. This affidavit has been translated to me into Greek by an

interpreter. I declare under penalty of perjury that the foregoing

is true and correct.

Executed March 22, 1991

's/ Nick Bafiti

Nicholas M. Bafitis

TRANSLATOR’S CERTIFICATE

FROSSO PANTELIDES declares as follows:

I am a Greek citizen temporarily residing in the United

States. ! attended an American high school in Cyprus where

classes were conducted in English and took additional courses,

in English, Heatherleys School of Art, in London, and New

York University, in New York. I have worked as a profes-

sional English/Greek interpreter for over 10 years. I have

passed two tests by the United States State Department for

conference interpreting and for written translations.

I certify, under penalty of perjury, that I have interpreted

the foregoing affidavit into Greek to Nicholas Bafitis before he

signed this affidavit and that my interpretation was true and correct

to the best of my ability.

_/s/ F. Pantelides _

Frosso Pantelides

Dated: March 22, 1991

35a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

ELPIS SAKARIA, et al.,

Plaintiffs, :

Civil Action No. MJG-87-3462

-against-

TRANS WORLD AIRLINES, -

Defendant

AYUB K. OMMAYA, M.D., declares as follows:

1. I am a physician licensed to practice in Maryland,

specializing in neurological surgery. I have been board certified

in neurosurgery by The American College of Surgeons, and am

a Fellow of the American college of Surgeons.

2. lexamined and evaluated Jack Sakaria in my office on

January 18, 1979 and again, in August, 1979. He gave the history

of being struck by an automobile traveling at a high speed on

October 20, 1978, causing him to sustain a severe head injury,

and leaving him with symptoms of memory impairment, frustra-

tions with his daily activities, and a lack of sense of time. My

physical examination of Mr. Sakaria on January 18, 1979 revealed

no neurological deficits. Mr. Sakaria had clinical evidence of

bifrontal/bitemporal brain contusions. A diagnostic EEG per-

formed on January 31, 1979 was normal with no evidence of a

seizure disorder, and a brain MRI performed in 1979 demonstrated

findings indicative of a left frontal encephalomalacia, consistent

with a head injury. When I next saw Mr. Sakaria on August 23,

1979, Mr. Sakaria’s clinical condition had improved considerably ,

as did his memory functions. This progress was confirmed by

his wife who was in attendance at both visits.

3. Mr. Sakaria had no history of psychomotor epilepsy,

and no history of delusions, hallucinations, or confabulation. He

36a

had no history of or reason to display symptoms of delusions,

hallucinations, or confabulation.

4. Ihave been told that Mr. Sakaria sustained a heart attack

in Greece, in December, 1985, after flying on a flight that stopped

in Rome. I have further been told that Mr. Sakaria described,

to persons in Greece, a terrifying experience in Rome that included

being confined in an aircraft without adequate ventilation, and

viewing the blood stained bodies of persons who had been killed

in a terrorist attack.

5. On the basis of my review of my records and file, I

can state unequivocally that Mr. Sakaria was not suffering from

a mental illness or mental disease or mental infirmity of an

idiopathic nature as a result of the head injury. Consequently,

it is highly unlikely that Mr. Sakaria experienced delusions,

hallucinations, or confabulation on the date of the incident in

question. Rather, in my opinion, to a reasonable degree of medical

certainty, Mr. Sakaria’s experience was based on reality.

6. I declare under penalty of perjury that the foregoing

is true and correct.

Executed April 17, 1991

Ayub K. Ommaya, M.D.

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.