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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1994
- **Citation:** 511 U.S. 1083

## Text

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m FILED
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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,
v.
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)?

ii
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

iv

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

vi

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,
v.
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.

2
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.

3

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.

4

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.

5

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

6

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 |

7

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

8

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.

9

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.

10

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.

11

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

12

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

—

13

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

14

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

15

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

cae ceacaaeaaaaaa aaa aa

16

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.

17

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

18

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).

19

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

|
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20

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

© Cf. Harmony v. State, 594 A. 2d 1182, 1189 (Md. App. 1991)("So
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

21

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

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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

2a

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

3a

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

4a

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.”

Sa

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).

6a

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.”

7a

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.

II

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

8a

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.

IV

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_1287%3A1. Public record. Not legal advice.