Appendix — Lufthansa German Airlines v. Krys

Supreme Court brief1998

Ask Donna

What actually matters in this document.

Text

A-l

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 96-4430

LEONARD KRYS,

REBECA KRYS, his wife

Plaintiff-Appellees

versus

LUFTHANSA GERMAN AIRLINES,

Defendant-Appellant.

On Appeal from the United States District Court for the

Southern District of Florida

ON PETITION R NG AN

SUGGESTION(S) OF REHEARING EN BANC

(Opinion , tits Ce., 19,

_ F.2d ).

Before: ANDERSON and EDMONDSON, circuit

Judges, and ROSENN*, Senior circuit Judge.

A-2

PER CURIAM:

The Petition(s) for Rehearing are DENIED and no member

of this panel nor other Judge in regular active service on the

Court having requested that the Court be polled on rehearing

en banc (Rule 35, Federal Rules of Appellate Procedure;

Eleventh Circuit Rule 35-5), the Suggestion(s) of Rehearing

En Banc are DENIED.

ENTERED FOR THE COURT:

UNITED STATES CIRCUIT JUDGE

*Honorable Max Rosenn, Senior U.S.Circuit Judge

for the Third Circuit, sitting be designation.

MEMORANDUM TO COUNSEL OR PARTIES:

RE: 96-4430 Krys V. Lufthansa German

Airlines

DC DKT NO.: 92-02488 CV-DTKH

The enclosed order has been entered on petition(s) for

rehearing.

See Rule 41, Federal Rules of Appellate Procedure, and

Eleventh Circuit Rule 41-1 for information regarding

issuance and stay of mandate.

Sincerely,

Thomas K. Kahn, Clerk

Reply To: Tramise Wilcoxson (404) 331-3336

November 7, 1997

John N. Romans

BIEDERMANN, HOENIG, MASSAMILLI & RUFF

90 Park Avenue

New York, NY 10036

RE: 96-4430 Krys v. Lufthansa German Airlines

DIST. CT. NO. 92-02488 CV-DTKH

Other addresses:

Carlos Juenke

Hon Daniel T.K. Hurley

Tod Aronovitz

Joel S. Perwin

Tod Aronovitz - ARONOVITZ & ASSOCIATES

A-4

United States Court of Appeals,

Eleventh Circuit.

No. 96-4430.

Leonard KRYS, Rebeca Krys, his wife, Plaintiffs-

Appellees,

Vv.

LUFTHANSA GERMAN AIRLINES, Defendant-

Appellant.

Aug. 25, 1997.

Appeal from the United States District Court for the

Southern District of Florida. (No. 92-2488-CV-DTKH),

Daniel T.K. Hurley, Judge.

Before ANDERSON and EDMONDSON, Circuit Judges,

and ROSENN*, Senior Circuit Judge.

ANDERSON, Circuit Judge:

Following a three-day bench trial, a magistrate judge

rendered a $2.4 million negligence judgment against

defendant Lufthansa German Airlines ("Lufthansa") in favor

of plaintiffs Leonard and Rebeca Krys. On appeal, Lufthansa

raises challenges to both the factual findings and legal

conclusions of the court below. Before turningto these

challenges, we set out briefly the facts and procedural history

of the case.

A-5

I. FACTS AND PROCEDURAL HISTORY '

On November 30, 1991, Leonard Krys ("Krys"), a 47-

year-old travel agent, was a passenger on Lufthansa Flight

463, traveling from Miami to Frankfurt, Germany.

Sometime in the early hours of the flight, Krys began to feel

ill and contacted a flight attendant. The attendant requested

that any doctors on board the plane identify themselves to the

crew, and three passengers responded. After those

passengers agreed that Dr. Samuel Fischmann was best

suited to handle the situation, Dr. Fischmann began to tend

to Mr. Krys. Precisely what symptoms either were evident

to Dr. Fischmann or were conveyed to Dr. Fischmann by

Krys is a matter of some dispute. Dr. Fischmann concluded

after his initial examination of the patient that “there was

nothing to worry about"; * only when the flight was over

Amsterdam did Dr. Fischmann become convinced that Krys

might be having a heart attack. However, the magistrate

judge found that Mr. Krys "suffered the symptoms of a

cardiac infarction, as described by the American Medical

Association and Lufthansa’s Manual, ... within the first one

and one-half to three hours of the ten hour flight...."

Although the plane’s flight path kept it close to the east coast

throughout the first one to three hours of the flight, the

* Honorable Max Rosenn, Senior U.S. Circuit Judge for the Third

Circuit, sitting by designation.

' For our instant purposes, we need only sketch out the nature of the

case; therefore, we resolve all disagreements regarding the facts in favor

of the district court’s findings. We resolve appellant’s challenge to these

findings in our discussion below.

‘ According to Dr. Fischmann’s testimony, he originally believed

Krys had too much to drink. When the pain did not subside with time,

he began to suspect that Krys was experiencing angina pains.

OO (§9((2 I ]°80 re

A-6

crew—ostensibly relying on Dr. Fischmann’s opinion—did

not make an unscheduled landing. Upon landing in

Germany, the plane was met by an ambulance which

transported Krys to a hospital. At the hospital, the doctors

concluded that Krys had indeed suffered a heart attack.

Krys and his wife filed the instant action in the Southern

District of Florida. Invoking the court’s diversity

jurisdiction, the plaintiffs set forth causes of action for

negligence and loss of consortium. The plaintiffs’ causes of

action turned not on an allegation that any act or omission of

Lufthansa caused Mr. Krys’s heart attack, but instead on an

allegation that Lufthansa’s crew acted negligently in

responding to the symptoms displayed by Mr. Krys and thus

aggravated the damage to his heart. The defendants, in turn,

moved for summary judgment, arguing that the plaintiffs’

state law causes of action were preempted either by the

Warsaw Convention or, alternatively, by the Federal

Aviation Act. The district judge denied the motion, and the

case was tried to a magistrate judge with the consent of the

parties. After the district court rejected Lufthansa’s

preemption arguments, the case proceeded as a common-law

negligence case.’ The magistrate judge concluded that

Lufthansa was indeed negligent and rendered a judgment for

Leonard Krys in the amount of $1.8 million and for Rebeca

Krys in the amount of $600,000.‘

On appeal, Lufthansa presents the following challenges to

the judgment below: (1) the plaintiffs’ state law claims are

preempted by the Warsaw Convention because the events that

> See n.19 infra.

* The magistrate judge later granted a motion allowing Lufthansa a

$4,699.42 set off for an insurance payment received by Krys. However,

we will refer to the original sum granted as an approximation of the

award.

A-7

transpired constitute an "accident"; (2) the judge erred in

finding that Krys displayed the symptoms of a heart attack in

the first one and one-half to three hours of the flight; (3) the

judge erred in finding that Lufthansa was negligent; (4) the

judge erred in finding that Krys suffered damage to his heart

wall as a result of Lufthansa’s negligence; and (5) the

damages awarded were excessive. ° We address each

argument in turn.

Il. APPLICABILITY OF THE WARSAW CONVENTION

First, we address appellant’s argument regarding the

applicability of the Warsaw Convention.® Under Article 17

of the Warsaw Convention, an international treaty binding on

the United States, air carriers are liable for injuries sustained

by a passenger on an international flight "if the accident

which caused the damage so sustained took place on board

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

embarking or disembarking." 49 Stat. 3018 (providing the

official English translation of the governing French text). As

the Supreme Court recognized in Air France v. Saks, 470

U.S. 392, 396, 105 S.Ct. 1338, 1341, 84 L.Ed.2d 289

(1985), “[an airline] is liable to a passenger under the terms

of the Warsaw Convention only if the passenger proves that

> Lufthansa makes no argument on appeal relating to preemption by

the Federal Aviation Act.

for the Unification of Certain Rules Relating to International

Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, T.S. No. 876

(1934), reprinted in note following 49 U.S.C.App. § 1502. For an

overview of the Convention as originally enacted and a survey of the

subsequent history affecting the Convention, see Floyd v. Eastern

Airlines, Inc., 872 F.2d 1462, 1467-1469 (11th Cir. 1989), rev'd on other

grounds, 499 U.S. 530, 111 S.Ct. 1489, 113 L.Ed.2d 569 (1991).

ee —

A-8

an “accident’ was the cause of her injury.” In the instant

case, appellant Lufthansa argues that the events that

transpired on the flight in question constitute an “accident”

under the terms of the Convention, and therefore, that the

Warsaw Convention—including its liability limits ’ —

applies and preempts the plaintiffs’ state-law negligence claims.*

7 Under the terms of the Warsaw Convention as originally enacted,

a carrier's liability was limited to approximately $8,300 (except in cases

involving “willful misconduct"). The Montreal Agreement of 1966, a

private inter-carrier agreement, raised the liability limit for international

flights originating, terminating, or having a connecting point in the United

States to $75,000. See Floyd, 872 F.2d at 1467-1469. Just last year, the

Department of Transportation approved a more complicated private

agreement affecting the liability limits of the Warsaw Convention. See

Tseng v. El Al Israel Airlines, Lid., --- F.3d ---- (2d Cir. June 13, 1997)

(summarizing the agreement).

® The precise preemptive scope of the Warsaw Convention is a

matter of some debate. Some courts have held that where there is an

“accident” within the terms of the Warsaw Convention, the Convention

applies and preempts state law causes of action entirely. See Floyd v.

Eastern Airlines, Inc., 872 F.2d 1462, 1482 n. 33 (11th Cir. 1989) (citing

cases to this effect), rev’d on other grounds, 499 U.S. 530, 111 S. Ct.

1489 113 L.Ed.2d 569 (1991). We have previously held only that where

there is an “accident” within the terms of the Warsaw Convention, the

Convention applies and preempts inconsistent provisions of state law. Id.

at 1482 (declining “to causes of action once its provisions are triggered

by an “accident’ within the meaning of Article 17"). Because we do not

find an “accident” within the terms of the Convention, we need not

address the question whether there is preemption of the entire cause of

action or only of inconsistent provisions of state law.

Finally, we note that there now exists a split in the circuits as to

whether the Warsaw Convention preempts state law causes of action

where an incident occurs on an international flight, but does not meet the

definition of "accident." Compare Abramson v. Japan Airlines Co., Ltd.,

739 F.2d 130 (3d Cir.1984), cert. denied, 470 U.S. 1059, 105 (2d Cir.

June 13, 1997) (both holding that the Warsaw Convention does not

preclude alternative theories of recovery in cases where there is no

covered “accident"), with Potter v. Delta Air Lines, Inc., 98 F.3d 881

A-9

Our determination of whether an "accident" occurred

is guided by the Supreme Court’s decision in Air France v.

Saks, 470 U.S. 392, 105 S.Ct. 1338, 84 L.Ed.2d 289

(1985). In Air France, the Court resolved a split in the

courts of appeals regarding the proper definition of the term

“accident” as used in the Warsaw Convention. After

examining the text of the Convention, its negotiating and

subsequent history, and the weight of precedent in the

(Sth Cir. 1996) (finding preemption even in the absence of an

entertain this argument for the following reasons. First, we think it is

clear that Lufthansa abandoned this argument in the court below.

Lufthansa’s motion for summary judgment presented, in effect, a total

preemption argument: Lufthansa argued that the Warsaw convention

applied because the incident occurred on an international flight; that state-

law causes of action were thus preempted; and that Lufthansa was not

liable under the Convention because there was no covered "accident."

However, after plaintiffs submitted an opposition citing the overwhelming

contrary case law, Lufthansa appeared to shift gears completely. In its

reply to plaintiffs, Lufthansa asserted only that if there were indeed crew

negligence, as the plaintiffs asserted, such negligence would constitute an

“accident” and thus bring the case within the purview of the Convention.

In other words, Lufthansa appeared to abandon the total preemption

argument in favor of the more modest preemption argument that turns on

the presence of an “accident”. The court below rejected the airline’s

preemption argument, characterizing the argument as the more modest

version. The airline interposed no objection to the court’s characterization

of the preemption argument, and thereafter the case proceeded as a state

law claim. On appeal, Lufthansa did not present the total preemption

argument either in its initial brief or in its reply brief; instead, Lufthansa

: only raised the argument assuming the presence of an “accident.” Dual

4 concerns of efficient administration and fairness to the opposing party

: persuade us not to entertain the total preemption argument in the instant

A-10

Convention’s signatory countries, the Court rejected the

argument that "accident" means "an occurrence associated

with the operation of an aircraft which takes place between

the time any person boards the aircraft with the intention of

the flight and all such persons have disembarked." Jd. at

396, 105 S.Ct. at 1340. Instead, the Court held that an

"accident" is properly defined as "an unexpected or unusual

event or happening that is external to the passenger." /d. at

405, 105 S.Ct. at 1345. The Court then applied this

definition to the case before it, which presented the question

whether a loss of hearing caused by normal operation of the

aircraft’s pressurization system constitutes an “accident”

within the meaning of Article 17. The Court answered this

question in the negative, saying that "when the injury

indisputably results from the passenger’s own internal

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

aircraft, it has not been caused by an accident." Jd. at 406,

105 S.Ct. at 1345.

Lufthansa urges us to hold that a negligent response to a

passenger’s heart-attack symptoms constitutes an "accident"

under the terms of Air France. In its view, aggravation of

a preexisting condition due to crew negligence is ipso facto

an injury caused by an “unexpected or unusual event ...

external to the passenger." This argument has some intuitive

appeal: the response of the crew to the passenger’s situation

is external to the passenger, and deviation from the normal

standard of care is at least arguably "unexpected" or

“unusual.” As further support for their argument that the

conduct alleged in the instant case constitutes an "accident,"

Lufthansa cites the pre-Air France case of Seguritan v.

Northwest Airlines, Inc., 86 A.D.2d 658, 446 N.Y.S.2d 397

(N.Y.App.Div.1982), aff'd, 57 N.Y.2d 767, 454 N.Y.S.2d

991, 440 N.E.2d 1339 (1982) (mem.). In Seguritan, the

court answered the question we are presented with today as

follows:

bipennate

14 Fe ee a cn ek PETER

A-11

The incident in question is clearly an "accident" within

the meaning of article 17. The “accident” is not the

heart attack suffered by the decedent. Rather, it is the

alleged aggravation of decedent’s condition by the

negligent failure of defendant’s employees to render

her medical assistance. This is somewhat analogous to

the hijacking cases where the “accident” which caused

the injury is not the act of the hijackers but the alleged

failure of the carrier to provide adequate security....

Thus, this case falls squarely within the terms and

conditions of the Convention. Jd. 446 N.Y.S.2d at 398-99.

Plaintiffs, on the other hand, urge us to hold that there

was no “accident” within the terms of the Warsaw

Convention. In the plaintiffs’ view, the instant case falls

within the category of cases the Supreme Court described in

Air France as not involving an "accident": cases in which

"the injury indisputably results from the passenger’s own

internal reaction to the usual, normal, and expected operation

of the aircraft." Air France, 470 U.S. at 406, 105 S.Ct. at

1345. Relying on numerous cases holding that aggravation

of pre-existing injuries due to inadequate care does not

constitute an "accident" within the meaning of the

Convention, the plaintiff argues that "the dispositive focus

[of the accident inquiry] ... is upon the event or the chain of

events which caused the initial injury"—in this case, the

heart attack. Because there has never been an allegation that

the heart attack itself was caused by an “unexpected or

unusual event external to the passenger,” the plaintiff argues

that there can be no "accident" involved in this case.

We turn, then, to the case law in plaintiffs’ favor. In

Scherer v. Pan American World Airways, Inc., 54 A.D.2d

636, 387 N.Y.S.2d 580 (N.Y.App.Div. 1976), the plaintiff

brought an action under the Warsaw Convention, alleging

A-12

that sitting in an airline seat on one flight had caused him

thrombophlebitis and sitting in an airline seat on another

flight had aggravated that condition. Having noted that

"[t]he planes were concededly not involved in a collision, nor

was there any turbulence during the flights," the court held

that there was no accident that would bring the suit within

the terms of Article 17. In Abramson v. Japan Airlines Co.,

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

1059, 105 S.Ct. 1776, 84 L.Ed.2d 835 (1985), the plaintiff

suffered an attack from a pre-existing periesophageal hiatal

hernia while traveling from Anchorage to Tokyo. When

plaintiff's wife asked the stewardess for a place where

plaintiff could lie down and employ a self-help remedy

involving massaging his stomach and sometimes inducing

vomiting, the stewardess responded that there were no empty

seats. Discovery, however, revealed that there were nine

empty seats in first class. Plaintiff sued the airline, claiming,

inter alia, that the airline had been negligent. In support of

his argument that the aggravation of his injury by JAL’s acts

and omissions constituted an “unusual and unexpected

happening” and, thus, a Warsaw Convention “accident,”

plaintiff analogize his case to cases involving terrorist

attacks, hijackings, and bombings (which other courts had

found constituted “accidents"). Applying its "unusual or

unexpected happening" test, the Third Circuit rejected the

plaintiff's arguments:

We are not persuaded that the situations are

analogous. In none of those cases was the

injury suffered during the course of a routine

and normal flight, as here. In the absence of

proof of abnormal external factors, aggravation

of a pre-existing injury during the course of a

routine and normal flight should not be

considered an "accident" within the meaning of

Article 17. See Warshaw v. Trans World

A-13

Airlines, 442 F.Supp. at 413 (no "accident"

where plaintiff's respiratory infection became

aggravated during the flight, resulting in

permanent hearing loss in one ear, because of a

change in cabin pressure which is part of the

normal flight procedure).

Id. at 133. According to the panel, "the occurrence that

allegedly aggravated plaintiff's condition was not an

“accident” within the terms of Article 17 of the Warsaw

Convention." Jd. at 135.°

In two post-Air France cases involving allegations that the

airline’s failure to provide adequate medical care aggravated

a passenger’s heart attack, district courts have followed

Abramson in finding no Article 17 "accident." See Tandon

v. United Air Lines, 926 F.Supp. 366 (S.D.N.Y.1996);

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

(D.C.I11.1985). See also Walker v. Eastern Air Lines, Inc.,

775 F.Supp. 111 (S.D.N.Y.1991) (parties agreed there was

no Warsaw Convention "accident" where plaintiff alleged

* See also Adamsons v. American Airlines, Inc., 105 Misc. 2d 787,

433 N.Y.S. 2d 366 (N.Y. Sup. Ct. 1980), aff'd, 87 A.D.2d 785, 449

N.Y.S. 2d 487 (N.Y. App. Div. 1982) (mot addressing the Warsaw

Convention argument), rev’d, 58 N.Y.2d 42, 457 N.Y.S. 2d 771, 444

N.E. 2d 21 (1982) (not addressing the Warsaw Convention argument),

cert. denied, 463 U.S. 1209, 103 S. Ct. 3540, 77 L.Ed. 2d 1390 (1983).

In Adamsons, the airline refused to allow a sick patient to board a plane

returning to the United States; allegedly, the delay in returning home

resulted in plaintiff's paralysis. Plaintiff sued the airline for negligence,

and the airline argued that the case was within the exclusive purview of

the Warsaw Convention. The court rejected this argument, in part on the

grounds that there was no “accident” within the terms of the Convention.

433 N.Y.S. 2d at 369. To the same effect, see Northern Trust Co. v.

American Airlines, Inc., 142 Ill. App. 3d 21, 96 Ill. Dec. 371, 491 N.E.

2d 417 (1985).

A-14

that inadequate care aggravated her husband’s preexisting

asthma condition and contributed to his death).

Initially, we note that we disagree with the plaintiffs’

reading of the case law in their favor. We do not think the

cases are accurately explained as focusing solely on the

initial injury and—in essence—ignoring any subsequent

events. Abramson, the leading case, is better explained as

turning on a conclusion that the aggravation injury suffered

by the plaintiff simply was not caused by “an unusual or

unexpected event or happening external to the plaintiff."

This conclusion is not unassailable: as we suggested above,

it is at least arguable that where injury is caused by crew

negligence, the injury arises from an "unexpected or unusual

event or happening external to the plaintiff."

On the other hand, if we substitute a purely factual

description of the relevant events in place of the legal

conclusion represented by "crew negligence," the conclusion

that no "accident" occurred is seen as the more reasonable

conclusion. If, in Abramson, the aggravating event is having

to sit upright in an airline seat throughout the duration of the

flight, then it seems clear that the aggravation does not arise

from an “unexpected or unusual event"—instead, the

aggravation injury arises solely from the "passenger’s own

internal reaction to the usual, normal, and expected operation

of the aircraft." By the same token, if, in the instant case,

the aggravating event is the continuation of the flight from its

scheduled point of departure to its scheduled point of

arrival,’° then it seems clear that the aggravation injury

10 We identify this as the relevant event by asking what precise event

or events allegedly caused the damage sustained by the plaintiff. In the

instant case, it is clear that if the plaintiff suffered damage as a result of

any external event, that event was the continuation of the flight and the

resultant delay in hospitalization.

icisiniteneniehilhhiiiaaaiaatitinaiiaaiili

A-15

arises not from an "unexpected or unusual happening," but

rather from the "passenger’s own internal reaction to the

usual, normal, and expected operation of the aircraft." See

Warshaw v. Trans World Airlines, Inc., 442 F.Supp. 400,

412 (E.D.Pa.1977) ("[I]t is clear under Article 17 that if the

hypothetical passenger’s heart condition were to have been

aggravated by the acceleration required on take-off, or by the

deceleration which occurs when landing, such an occurrence

would not be an injury as the result of an "accident’....").

We acknowledge that this is a close question, and we have

done our best to do justice to the arguments on either side of

the issue. However, ultimately we are convinced that the

proper approach is indeed to look at a purely factual

description of the events that allegedly caused the aggravation

injury suffered by the plaintiff. Such an approach is in

accord with the plain meaning of the phrase "event or

happening" as used in the Air France Court’s definition of

“accident” and with the manner in which the Court described

the decisions of the lower courts. In particular, we note that

in summarizing the Abramson decision in a parenthetical, the

Court described the relevant event as "sitting in airline seat

during normal flight" notwithstanding the fact that the

plaintiff had attempted to make out the Warsaw Convention

claim based on the airline’s "acts or omissions"—i.e., its

negligence. Air France, 470 U.S. at 405, 105 S.Ct. at 1345.

Next, we find that lower courts determining whether an

“accident” has occurred have typically looked to a purely

factual description of the event.’ Finally, we think that

'! See, e.g., Floyd v. Eastern Airlines, Inc., 872 F.2d 1462, 1481

(11th Cir. 1989) ("The engine failure in question was an "accident’ within

the meaning of the Convention ...."), rev’d on other grounds, 499 U.S.

530, 111 S.Ct. 1489, 113 L.Ed.2d 569 (1991); Gezzi v. British Airways

PLC, 991 F.2d 603, 605 (9th Cir.1993) ("The presence of water on the

stairs qualifies as an “accident’ because it was both “unexpected or

A-16

looking at the factual events, as opposed to an assertion of

"crew negligence," is in accord with the design of the

Warsaw Convention, which provides carriers a "due care"

defense.’ Having provided for a defense turning on the

absence of negligence, we think it is unlikely that the drafters

intended that the initial "accident" inquiry be resolved by

reference to negligence. Cf. Air France, 470 U.S. at 407,

105 S.Ct. at 1346 ("The "accident’ requirement of Article 17

is distinct from the defenses in Article 20(1), both because it

is located in a separate article and because it involves an

inquiry into the nature of the event which caused the injury

rather than the care taken by the airline to avert the

unusual’ and "external to’ [the plaintiff]."); Day v. Trans World Airlines,

Inc., 528 F.2d 31, 33 (2d Cir. 1975) (“It is undisputed, moreover, that a

terrorist attack is considered an "accident’ within the purview of these

provisions."), cert. denied, 429 U.S. 890, 97 S.Ct. 246, 50 L.Ed.2d 172

(1976); Chendrimada v. Air-India, 802 F.Supp. 1089, 1093

(S.D.N.Y.1992) ("[I]t is the fact of being kept on board the plane without

food, no matter what the reason, which is itself the “unexpected and

unusual event’ in the chain."); Diaz Lugo v. American Airlines, Inc., 686

F.Supp. 373, 375 (D.P.R.1988) ("The coffee spill was an unusual or

unexpected event external to [the plaintiff] and, thus, an Article 17

“accident.” "); Oliver v. Scandinavian Airlines System, 17 Avi. (CCH)

18,283, 18,284 (D.Md.1983) ("[T]he proper focus is on what happened

to the passenger. Consequently, this court concludes that an accident

occurred when the fellow passenger fell unexpectedly upon the

plaintiff."). We note that Seguritan, the sole case squarely supporting the

defendant’s position, is contra.

12 Under Article 20(1) of the Warsaw Convention, carriers may

defend claims on the grounds that they took all necessary measures to

avoid the passenger’s injury or that it was impossible to take such

measures. Air France, 470 U.S. at 406-07, 105 S.Ct. at 1346. We note

that the Montreal Agreement requires carriers to waive this “due care"

defense for international flights which originate, terminate, or have

stopping points in the United States. Jd. However, this waiver is

immaterial to the argument we present above.

A-17

injury."). As we set out in the preceding paragraph, looking

solely to a factual description of the aggravating event in this

case—i.e., the continuation of the flight to its scheduled point

of arrival—compels a conclusion that the aggravation injury

was not caused by an “unusual or unexpected event or

happening that is external to the plaintiff."

The Supreme Court’s treatment of the Third Circuit’s

holding in Abramson provides further support for our

ultimate conclusion that the instant case does not involve a

Warsaw Convention "accident.". Expounding upon the

assertion that its interpretation of the Convention was

consistent with the weight of precedent in foreign and

American courts, 470 U.S. at 400, 105 S.Ct. at 1343, the

Court in Air France first described foreign case law

supporting the decision, then wrote:

These observations are in accord with American

decisions which, while interpreting the term "accident"

broadly, Maugnie v. Compagnie Nationale Air France,

549 F.2d, at 1259, nevertheless refuse to extend the

term to cover routine travel procedures that produce an

injury due to the peculiar internal condition of a

passenger. See, e.g. Abramson v. Japan Airlines Co.,

739 F.2d 130 (C.A.3 1984) (sitting in airline seat

during normal flight which aggravated hernia not an

"accident"), cert.denied, 470 U.S. 1059, 105 S.Ct.

1776, 84 L.Ed.2d 835; MacDonald v. Air Canada,

439 F.2d 1402 (1st Cir.1971) (fainting while waiting

in the terminal for one’s baggage not shown to be

caused by an "accident"); Scherer v. Pan American

World Airways, Inc., 54 A.D.2d 636, 387 N.Y.S.2d

580 (1976) (sitting in airline seat during normal flight

which aggravated thrombophlebitis not an "accident").

Id. at 404-05, 105 S.Ct. at 1345. We do not see any

A-18

material factuai distinctions between Abramson and the

instant case. We find support for our decision in the

Supreme Court’s suggestion that Abramson is an example of

a case where "routine travel procedures ... produce an injury

due to the peculiar internal condition of a passenger" and the

Court’s holding that this latter category of cases does not fit

within the definition of "accident" for purposes of the

Warsaw Convention.

For the foregoing reasons, we conclude that the events

that transpired on the flight do not constitute an "accident"

within the meaning of the Warsaw Convention.

Ill. FINDINGS REGARDING KRYS’S SYMPTOMS

Lufthansa also argues that the court below erred in

finding that the plaintiff displayed the symptoms of a heart

attack (as described by the American Medical Association

and by Lufthansa’s Manual) within the first one and one-half

to three hours of the flight. According to Lufthansa’s

Operating Procedures Manual, the symptoms of a heart

attack are as follows: "The patient complains about feeling

an ongoing pain and tightness in his chest, which may radiate

into the neck area and the left arm. The patient shows a

sudden paleness and is restless." The manual also provides

the following "rough distinction" between angina and a heart

attack: "After administering [nitroglycerin], pain from

angina pectoris disappears after 2 to 3 minutes at the most.

In a heart attack, pain usually persists." The symptoms

described by the American Medical Association are "crushing

pain in the center of the chest, pain in the chest, pain in the

jaw, arms, tightness in the chest, bursting sensation in the

A-19

chest, dizziness, shortness of breath, sweating, and

nausea. "!9

The federal rules provide that a district court’s findings of

4 fact in actions tried without a jury may not be reversed

4 unless clearly erroneous. Fed.R.Civ.P. 52(a). A finding is

clearly erroneous when the reviewing court, after assessing

the evidence in its entirety, is left with a definite and firm

conviction that a mistake has been committed. Anderson v.

City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504,

1511, 84 L.Ed.2d 518 (1985). As the Supreme Court has

cautioned:

If the district court’s account of the evidence is

plausible in light of the record viewed in its entirety,

the court of appeals may not reverse it even though

convinced that had it been sitting as the trier of fact,

it would have weighed the evidence differently.

Where there are two permissible views of the

evidence, the factfinder’s choice betwcen them cannot

be clearly erroneous.

Id. at 573-74, 105 S.Ct. at 1511. The Supreme Court has

further emphasized that where a trial judge’s finding is

"based on his decision to credit the testimony of one of two

or more witnesses, each of whom has told a coherent and

facially plausible story that is not contradicted by extrinsic

evidence, that finding, if not internally inconsistent, can

virtually never be clear error." Jd. at 575, 105 S.Ct. at

1512.

'? We take this list of symptoms from a question asked by plaintiffs’

counsel that appears to catalog the AMA-indicated symptoms. We note

that we do not find the parties in dispute as to what the basic symptoms

of a heart attack are.

A-20

Keeping the Supreme Court’s admonitions firmly in mind,

we find no clear error in the magistrate judge’s finding that

Krys displayed the symptoms of a heart attack within the first

three hours of the flight. Mr. Krys testified that he went to

the lavatory “about an hour and a half" into the flight

because his stomach was upset and he felt nauseous and that

he returned to the lavatory thirty minutes later because he

was feeling nauseous and dizzy. There, he began to feel a

"crashing, excruciating pain in [his] chest."'* Krys also

testified that he noticed his clothes were wet from

perspiration. Josie Curry, a fellow passenger sitting in the

row with Mr. Krys, testified that she observed him making

these two trips and noticed that he was perspiring. Jan

Holloway, another passenger, testified that she noticed the

plaintiff returning from the lavatory:

The first thing I really noticed was just glancing up

and seeing someone coming back from like the

restroom area, the galley area, just looking like he

was airsick, you know, just that flushed kind of

white pasty look you-hope-you-never-get-it type....

[K]ind of washed out is what I really meant, just

where you just are gray and you just don’t feel

good.

Holloway also noticed that Krys was perspiring.

After returning from the lavatory, Mr. Krys contacted the

flight attendant, who made an announcement asking any

doctors on board to identify themselves to the crew. Dr.

Fischmann responded to the call. In the estimation of both

'* We focus our review only on the symptoms displayed by Krys;

however, we provide information regarding Krys’s description of his

subjective experiences to put the other testimony into context.

A-21

Josie Curry and Jan Holloway, the flight attendant was

contacted between an hour and an hour and a half into the

flight; by Krys’s calculation, this happened approximately

two hours into the flight. Krys, Curry, and Fischmann all

testified that Krys told the doctor at this time that he was

suffering chest pains. Krys’s testimony reflects that he told

Dr. Fischmann that he had pain in his chest radiating into his

arms, pain in his jaw, difficulty breathing, dizziness, nausea,

and sweating. Josie Curry described the plaintiff's state this

way:

He appeared to have difficulty breathing. He

Started to get pale. He appeared to be very

uncomfortable, you know, with the movement

within his seat. Made me notice that he was very

uncomfortable. It was like this man is miserable.

Jan Holloway echoed this description: "The man just was,

I don’t want to say in agony, but he was uncomfortable,

couldn’t sit still, couldn’t stand, couldn’t—just whatever

position he tried to get into to get comfortable, it didn’t last

long."

In treating Krys, Dr. Fischmann administered two

separate doses of nitroglycerin.'* Curry testified that after

the nitroglycerin was administered, "it didn’t appear [Krys]

was getting better....". Even after the second administration

of nitroglycerin, according to Josie Curry, "He seemed

miserable. He was pale-colored.... He looked ... about the

same as he did before....". In Dr. Fischmann’s assessment,

” Although Krys was also given oxygen, we focus on the effect of

the nitroglycerin because, according to the Lufthansa Manual (discussed

supra ), angina pains typically dissipate upon the administration of

nitroglycerin, while symptoms of a heart attack persist.

A-22

there was "no big difference” in Krys following the

administration of the nitroglycerin. As for the relevant time

frame, Josie Curry estimated that the second dose of

nitroglycerin was administered three hours into the flight.

Jan Holloway similarly estimated that the events involving

the summoning of the doctor, the administration of oxygen,

and the dispensing of the nitroglycerin all occurred "between

like an hour and a half ... to two and a half, three hours

[after leaving Miami]."

We are aware that there is contradictory evidence in the

record. The purser on board the airplane, Jurgen Freund,

estimated that the crew was not contacted until at least two

and a half hours into the flight. Freund also claimed that at

the time he first saw the patient, he did not see any of the

following symptoms: sudden paleness, pain in the upper

thorax radiating to the shoulder, and sudden perspiring.'®

Dr. Fischmann testified that Krys had chest pains, “but they

weren’t severe." According to the doctor, Krys was

"complaining a little bit but not as a typical heart attack."

Fischmann further testified that he did not observe a changed

complexion or “cold sweating" in the patient until the flight

was over Amsterdam and that he never observed the

passenger having difficulty breathing to the point that he

couldn’t speak very well. The captain on board, Hans

Schnabl, testified that he saw the patient while he was being

attended by Dr. Fischmann and did not observe that Krys

was suffering severe chest pains or that he was sweating

profusely.

The magistrate judge could have credited either the

testimony of Purser Freund, Dr. Fischmann, and Captain

‘© At another point of his deposition, however, Freund stated that

Krys “looked to me little bit pale."

A-23

Schnabl or the testimony of Leonard Krys, Josie Curry, and

Jan Holloway. The choice made between these two

permissible alternatives is, almost by definition, not clear

error. See Anderson, 470 U.S. at 575, 105 S.Ct. at 1512.

The challenged findings of the court below are not clearly

erroneous.

IV. FINDINGS REGARDING

LUFTHANSA’S NEGLIGENCE

Next, Lufthansa challenges the Magistrate judge’s finding

that Lufthansa acted negligently in its response to the

symptoms displayed by Krys.’ In particular, Lufthansa

'” The magistrate judge made the following findings with regard to

Lufthansa’s negligence:

4. LUFTHANSA through its employees, servants and/or agents,

failed to observe and apply its own first aid instructions regarding cardiac

infarctions to the detriment of its passengers, LEONARD KRYS.

5. LUFTHANSA failed to contact its ground personnel in order to

Rather than reviewing each of these findings for error, we answer only

Lufthansa’s particular contentions as set out above.

A-24

argues that its reliance on Dr. Fischmann’s analysis and

advice fulfilled its duty to Mr. Krys.'* We review the

magistrate judge’s application of the standard of care to the

facts of the case—i.e., the determination on the ultimate

question of negligence—for clear error. Daley v. United

States, 792 F.2d 1081, 1086 (11th Cir. 1986).

Lufthansa relies primarily on two lines of cases in

support of its argument that its deference to Dr. Fischmann’s

opinion was not a breach of the duty a carrier owes to its

passengers. One line of cases is easily disposed of.

Lufthansa cites numerous cases establishing that under

maritime law, a shipowner will not be held liable through

respondeat superior for the negligence of the ship doctor.

These cases are inapposite for two reasons. First, these

cases establish a general rule of maritime law, and maritime

law does not govern the disposition of the instant case.'°

'8 Lufthansa also argues that the question of the crew’s negligence

must not be determined “according to 20/20 hindsight" - i.e. according

to the after-acquired knoiwledge that Mr. Krys indeed suffered a heart

attack during the flight. Taken as a general admonition, we agree with

this proposition. However, we find no support in the record for the

implied assertion that the magistrate judge viewed the crew’s actions

through hindsight.

- The appellant argued both in its reply brief and at oral

argument that maritime law should govern this case even if the Warsaw

Convention does not apply. However, the appellant failed to argue this

point as clearly as it should have in its initial brief on appeal. Rather,

Lufthansa urged the application of maritime law in a somewhat different

context, i.e., where the Convention applies but provides no rule of law

on a particular issue. In other words, Lufthansa argued that maritime law

should fill the interstices not covered by the Convention. Despite

Lufthansa’s lack of clarity, we may well have entertained the argument

anyway had Lufthansa squarely and timely presented it to the district

court. However, the record is clear that Lufthansa did not fairly raise the

argument in a timely fashion in the district court, and therefore we

er ba,

DNR ane oe RES UO WS Cr a

A-25

Second, the plaintiffs do not allege that Lufthansa is

vicariously liable for the negligence of Dr. Fischmann;:

instead, they argue that the airline is liable for negligently

deferring to Dr. Fischmann’s assessment of the situation.

decline to entertain the argument on appeal. Lufthansa has not brought to

our attention any pretrial suggestion that maritime law should govern, and

our Own careful review of the record confirms that no such suggestion

was made before trial. Quite the contrary, all the pretrial documents

(e.g., the joint pretrial stipulation, Lufthansa’s own mediation statement,

the briefs on summary judgment, Lufthansa’s own subsequent status

parties and the court understood that the case would be tried under state

law negligence principles.Two months after the trial, in its proposed

findings of fact and conclusions of law, Lufthansa cited both Florida

cases and maritime cases in support of its argument that Lufthansa did not

breach its duty of carte. After plaintiffs distinguished the maritime cases

in part by pointing out that they arose in admiralty, Lufthansa filed a

supplemental memorandum ostensibly regarding "a recent decision on

point.” In that memorandum, Lufthansa explicitly asserted for the first

time that “maritime law applied to Mr. Krys’ case." Even then, the

alia, that the point was waived. The court’s order expressly applies

Florida law and contains no discussion of the applicability of maritime

law. We construe this as a rejection on the basis of untimeliness, which

is amply warranted. Only after the court’s order issued did Lufthansa

finally present a fully developed argument that maritime law should

apply. A party who has marshalled and presented its evidence upon the

i that one body of law governs may be prejudiced by the

belated application of a different body of law. For the foregoing reasons,

we decline to address the question of whether maritime law should have

been applied. See Resolution Trust Corp. v Dunmar Corp. 43 F.3d 587,

598-99 (11th Cir.) (declining to resolve issues not fairly raised in the

district court) (en banc), cert. denied, --- U.S. ---, 116 S.Ct. 74, 133

L.Ed.2d 33 (1995).

A-26

Next, Lufthansa cites two cases for the proposition that

deference to the advice of a competent physician satisfies a

carrier’s duty of due care. In Gamble v. The New Bedford,

111 F.Supp. 8 (D.R.I.1953), a passenger on an excursion

from Providence, Rhode Island, to Block Island, Rhode

Island, fell down a ship staircase and was knocked

unconscious. The crew placed the passenger in a canvas

chair in a semi-reclining position. When he regained

consciousness, the passenger complained of a pain in his hip.

A doctor in Block Island directed that the passenger be kept

in the position in which he had been placed until he could be

hospitalized; the passenger then returned to Providence.

The plaintiff complained that the care and treatment he

received—namely, having been put in a chair rather than a

bed—constituted negligence. The court stated the relevant

standard of care as follows: "The duty of a ship owner to a

passenger who is injured during the voyage is to see that his

injuries receive such care and treatment as is reasonably

practicable in view of the facilities available." Jd. at 12.”

Applying this standard to the facts, the court found no

negligence:

[T]he master was not a physician. The Court

cannot say that the master, not knowing the full

extent of libelant’s injury, acted unreasonably in

allowing libelant to remain in the adjustable chair.

Furthermore, after Dr. Orlando’s examination of

the libelant, the master was acting under the

doctor’s direction in allowing libelant to remain in

the position in which he had been placed. The

Court is satisfied that at all times after the accident

20 Although The New Bedford is a suit in admiralty, we find its

analysis relevant to our decision because the standard of care applied in

The New Bedford is similar to the standard governing the instant case.

A-27

Id. at 12 (emphasis added). Although Lufthansa attaches

much significance to the court’s subsequent statement that

"the [courts have generally held that a master fulfills his

duty to exercise due care if he follows the advice of a

competent physician," id., we do not think The New Bedford

Stands for the proposition that deference to a competent

doctor fulfills the standard of care in all conceivable

Situations. As we read the decision, particularly the language

emphasized in the quotation above, the court reviewed the

reasonableness of the treatment afforded the plaintiff, giving

weight to the fact that a doctor had recommended that

treatment. We think this is substantially different from

holding that because the crew did what the doctor

recommended, it was ipso facto not negligent.

In The Van der Duyn, 261 F. 887 (2d Cir.1919), cited

both by appellant and by the New Bedford court, a coal

passer injured his arm while at sea. The officers on board

treated the cut and bruise and prevented any infection. When

the ship docked in Cuba, a doctor examined the injury and

reported that no other treatment was necessary. Upon the

ship’s return to New York, however, it was discovered that

the plaintiff had a fractured ulna and required surgery. In

answer to the plaintiff's complaint that he was not given

“considerate treatment" on board the ship, the court wrote:

The officers of the ship owed to respondent the

exercise of reasonable care to furnish such aid as

A-28

ordinarily prudent persons would under similar

circumstances.... [The doctor] did not report a

fracture, or any unusual or serious condition of the

arm, and therefore it cannot be said that in the

exercise of reasonable care it was incumbent upon

the officers of the vessel to take the patient to a

hospital in Cuba. On the return voyage to New

York, the chief officer continued the treatment as

directed by the doctor.

... We see nothing in the conduct of the

officers of the ship which warrants condemnation,

or upon which there may be fixed a liability for the

shipowner. The requirement of a ship is to give

reasonable medical treatment under all

circumstances. There must be reasonable ground to

believe that consequences more serious than the

swelling, pain, and suffering which ordinarily

attend a fracture or a severe laceration resulted,

before liability be imposed. Medical advice

received and followed, as was done by the officers

of the ship, is all that could reasonably be expected

from the officers here under the circumstances

disclosed by this record.

The ship will not be held responsible for an

error of judgment on the part of the officers, if

their judgment is conscientiously exercised with

reference to conditions existing at the time.

Id. at 889-90. We think that The Van der Duyn, like The

New Bedford, falls short of saying that reliance on a doctor

fulfills the carrier’s duty in all circumstances.

The parties do not cite, and our own research has not

disclosed, more recent analogous cases. We therefore

— EE ES

A-29

Proceed to determine whether the Magistrate judge’s finding

of negligence was clearly erroneous. Under Florida law,?!

a common Carrier must "exercise the highest degree of care,

foresight, prudence and diligence reasonably demanded at

any given time by the conditions and circumstances then

affecting the passenger and the carrier during the contract of

Carriage." Swilley v. Economy Cab Co. of Jacksonville, 46

So.2d 173, 177 (F1.1950).

We agree that whether Lufthansa breached this duty is a

Close question. We are not unsympathetic to the defendant’s

argument that the crew’s deference to Dr. Fischmann’s

analysis was reasonable under the circumstances—especially

in light of the recognized difficulty of distinguishing a heart

attack from other conditions that cause Similar symptoms.

Were we deciding the question of negligence de novo,

perhaps we would resolve the issue differently. However,

we do not sit in the place of the factfinder; we are only to

ask whether the finding is Clearly erroneous in view of the

entire record. That much, we cannot Say.

Plaintiff adduced expert testimony to the effect that the

Lufthansa crew deviated from the airline industry standards

which prevailed at the time of the incident 2 Captain Paul

Roitsch, an expert in aviation Standards, testified:

It’s my opinion ... that the mere fact that a person

appears and announces that he’s a doctor does not

7! We note that Lufthansa has not challenged the applicability of

Florida law given the assumption that state law is to be applied.

Under Florida law, industry-wide standards are admissible as

relevant, although not conclusive, evidence of the standard of care.

Brown v. Sims, 538 So.2d 901, 905 (Fla. Dist.Ct. App. 1989), quashed in

part on other grounds, 574 So.2d 13] (Fla.1991).

A-30

relieve the crew of their responsibilities whatever.

They must still continue to monitor and see what’s

happening and make sure that it’s correct, which

was not done in this case, and I think the results

show what happens when the crew decides to walk

away from a situation because there’s a doctor on

the scene.

It’s my feeling that Purser Freund should have

immediately gone into his books and said to himself, I’m

going to read and see what Lufthansa tells us to do about

a heart attack, about a person with these symptoms, so

that he could monitor what was happening.

Captain Roitsch summarized the failings of the crew as

follows:

[B]asically I see this as a failure to communicate.

The airline established procedures for handling

situations like this.’ The captain must bear the

ultimate responsibility as the person in charge ...

who abrogated his responsibility and handed it over

23 The Lufthansa Operating Procedures Manual describes the

following “therapy” for a passenger displaying symptoms of a heart

attack:

Have the patient relax in supine position with slightly elevated upper

body. Talk to the patient in a calming manner. Give fresh air and,

if possible, supply with oxygen. Give | to 2 Nitrolingual [a brand

name of nitroglycerin] capsules to chew in intervals (every hour).

Check pulse in short intervals (every 15 minutes). After landing,

have the patient immediately admitted to a hospital.

The Lufthansa Flight Operations Manual provides that a flight "may

divert enroute” if a “passenger on board of flight requir[es} immediate

medical assistance."

ee _

A-31

to another individual.

[T]he captain should have made absolutely sure that

he was getting good information at every point in

the affair with Mr. Krys.

This did not happen for some reason....

(I}f [the captain] had information that Mr. Krys was

suffering the way he was suffering and has been

described as suffering, that Captain would have

turned immediately and landed....

I guess what I’m trying to say is that the defense

has said that if the doctor hadn’t been there,

Captain Schnabl would have landed, which tells us

basically it’s too bad the doctor was there, because

his presence affected this event adversely in several

ways, the most important one of which was it

diverted apparently every person in that crew from

pursuing his or her responsibilities, and I take that

down to the last person in the cabin.

Roitsch further testified:

I am impressed by the fact that two lay witnesses

were able to describe Mr. Krys’s symptoms in a

manner that absolutely fulfills the description of a

heart attack by the AMA, by Lufthansa German

Airlines, and by Dr. Fischmann himself.

I cannot believe, it’s so difficult to believe

that these were not evident also to that cabin crew,

and being evident to the cabin crew, they should

have passed on to the Captain and to the doctor and

the question asked should we not rethink our

decision to land and land immediately .

A-32

There was one other thing that I wanted to

say in here, and I think this is very crucial: That

airplane was a full airplane. Everybody was very,

very busy.... I think the volunteering of this doctor

provided a means by which all of these crew

members could say, fine, everything is wonderful,

we can proceed as we normally would, and that to

me is an abrogation of the responsibility that’s

placed in their hands.

Asked whether, based on industry standards, he believed the

flight should have landed, the witness testified: "Yes, I

believe they should have landed on the East Coast of the

United States, or even farther up into Nova Scotia or

Newfoundland would have been acceptable."

We have upheld the magistrate judge’s finding that Krys

displayed all of the symptoms of a heart attack as outlined by

the AMA and by Lufthansa’s operating manual. See section

III above. In light of that fact and the entirety of the

evidence, we think the magistrate judge could conclude that

notwithstanding Dr. Fischmann’s impressions, Lufthansa’s

employees knew or should have known that Mr. Krys was

suffering a heart attack, and thus that an unscheduled landing

was necessary. Therefore, we cannot say that the magistrate

4 In addition to Captain Roitsch’s testimony, we note that Captain

Schnabl himself testified:

If [Krys displayed all the symptoms alleged by the plaintiff], I

would talk to the doctor much longer than I did and really ask

him what’s happening here. For heaven’s sake, how are we

going to continue? I would have to take care of it, and I would

not have believed the situation was under control.... But if I

get the word of a doctor that the situation is under control, there is no

reason to divert and land....

A-33

judge’s finding of negligence was Clearly erroneous.

V. FINDINGS REGARDING DAMAGE TO

KRYS’S HEART

Lufthansa argues that "even if an emergency landing had

been made along the North American coast Krys would still

have sustained damage to his heart wall." Taking this point

of error as a challenge to the fact finding that Mr. Krys

sustained significant permanent injury to his heart as a direct

result of the failure to land the aircraft at an available

airport,** we review for clear error.

We take Lufthansa’s argument to be that enough time

would have elapsed during the execution of an unscheduled

landing and transportation to a nearby hospital that whatever

treatment Krys could have received could not have mitigated

the damage done to his heart. We note that there was

conflicting evidence in the record as to how much time

would have been required to land the plane and get Krys to

a hospital; similarly, precisely when the heart attack

occurred was a matter of some debate. However, even

assuming arguendo that appellant is correct in asserting that

25 Given the questions asked by defense counsel of the witnesses and

the precise phrasing of their point of error, we Suspect that Lufthansa’s

argument is actually that Krys would have suffered some heart damage

regardless of whether the plane made an unscheduled landing. We need

not dwell on the factual accuracy of this point, for it is legally

insignificant insofar as the question is whether Lufthansa is liable for

negligence. Lufthansa may be liable for negligence so long as the delay

aggravated the damage to the heart. Out of an abundance of caution, we

take the appellant to have raised the relevant question and address it

above. To the extent that Lufthansa’s argument about the inevitability of

some damage to the heart relates to the amount of damages awarded to

the plaintiff, we factor this argument into our resolution of the appellant’s

excessive damages argument. See section VI infra.

A-34

treatment could not have been administered for three hours

after the heart attack,”* we find no clear error.

Dr. Peter Segall, a Miami cardiologist and one of

Leonard Krys’s treating physicians, testified that "if you are

able to give thrombolytic therapy *’ within the first six

hours after a myocardial infarction, you limit significantly

the size of the amount of damage done, and the longer you

wait, the less chance you have of helping." Dr. Segall

testified more specifically that “had [Krys] received

thrombolytic therapy two to four hours after the onset of

symptoms, he would have experienced significantly less

damage than he did suffer."** Dr. Leonard Zwerling, also

a Miami cardiologist and treating physician to Mr. Krys,

testified, "If he had been given thrombolytic therapy within

the first few hours of his heart attack—the earlier the better,

by the way—the chances are he would have a diminution, or

lessened the size of the heart muscle damage." Responding

to defense counsel’s suggestion that the damage Mr. Krys’s

heart sustained was a result of the heart attack rather than the

delay in treatment, Dr. Zwerling stated, “It is a result

potentially, [of] every delay, because the size of the damage

might have been lessened if he received thrombolytic therapy

26 While we assume this time frame to be correct for the sake of

argument, we note that we are inclined to think the appropriate time

frame is actually less than three hours.

27 According to Dr. Segall, thrombolytic therapy involves the

administration of streptokinase. Thrombolytic therapy is “designed to

break down the blood clot, which is the ultimate insult, ultimate occlusion

which causes the heart damage.”

28 according to Dr. Segall, “longevity after a myocardial infarction

is best related to the amount of damage that was caused by the heart

attack.”

A-35

earlier." Dr. Leonard Sommer, a Miami cardiologist who

examined Mr. Krys, testified that “within four to six hours

after the onset of an infarction thrombolysis can diminish but

probably not reverse completely a heart attack."

The magistrate judge’s fact finding was supported by

ample evidence.

VI. EXCESSIVENESS OF DAMAGES

Finally, Lufthansa argues that the damages should be set

aside as excessive.” The magistrate judge awarded

compensatory damages in the amount of $1.8 million to

Leonard Krys and $600,000 to Rebeca Krys. Because state

law provides the rule of decision in this case—at least as it

has been litigated,” our determination of whether this

award was excessive is governed by state law. Finch v. City

of Vernon, 877 F.2d 1497, 1506 (11th Cir.1989). In

Lassitter v. International Union of Operating Engineers, 349

?? We note that the magistrate judge denied Lufthansa’s post-trial

motion for remittitur under Fed.R.Civ.P. 59. The judge wrote:

Lufthansa’s Motion for Remittur fails to comply with Local Rule

7.1A by not including therein a memorandum of law in support.

Furthermore, remittur is not proper in cases involving bench

Lufthansa has not argued that the magistrate judge erred in denying

the motion for remittitur; it has only urged us to set aside the

A-36

So.2d 622, 626-27 (Fla.1976), the Florida Supreme Court

examined "certain well-established rules which control a

review of the question of excessiveness of a jury’s verdict":

In Seaboard Coast Line Railroad Company v. McKelvey,

270 So.2d 705, 706 (Fla.1973), we said:

"Consistently, our Courts have vested

juries with the sound discretion to render verdicts

in personal injury cases, upon the equally consistent

admonition that there is ample evidence to support

such verdicts and that the verdicts are not clearly

arbitrary or sO excessive as to indicate passion,

prejudice, corruption, improper motive or to shock

the judicial conscience."

Also in Odoms v. Travelers Insurance Company, 339

So.2d 196 (Fla. 1976), we said:

"Under the general rule a verdict should

not be disturbed on the ground of excessiveness

unless it is manifestly so excessive as to shock the

judicial conscience, or unless it is so excessive as

to be indicative of prejudice, passion or corruption

on the part of the jury, or unless it clearly appears

that the jury ignored the evidence or misconceived

the merits of the case relating to the amount of

damages recoverable as, for example, by taking

into consideration improper elements of damages."

At p. 198.

Although the verdict may be for considerably more or less

than in the judgment of the court it ought to have been,

still the court should decline to interfere, unless the

amount is so great or small as to indicate that the jury

must have found it while under the influence of passion,

A-37

Vol. 1, § 1 (1972).

We agree with Lufthansa that the verdict seems large.

However, Florida law sets a high standard for setting

verdicts aside as excessive, and in light of this standard, we

cannot conclude that the verdict was excessive.

VII. CONCLUSION

Having rejected each of the appellant’s points of error,>!

we affirm the judgment. AFFIRMED 2

- Appellant raises as a separate point of error that the

magistrate judge’s award of attorney’s fees under Florida law

was preempted either by the Warsaw Convention or by

general maritime law. This argument is foreclosed by our

resolution of Lufthansa’s primary arguments regarding the

applicability of the Warsaw Convention and maritime law.

*? The appellees” motion for appellate attorney's fees is granted. See

Fl. Stat. §§ 768.79 and 59.46. We remand this case for a determination

of the appropriate sum.

A-38

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

LEONARD KRYS and

REBECA KRYS CASE NO. 92-2488- Cciv-

HURLEY

Plaintiffs,

LUFTHANSA GERMAN

AIRLINES

Defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This matter is before the Court upon the Amended

Complaint for Money Damages of LEONARD KRYS and

REBECA KRYS, his wife, as Plaintiffs. Plaintiffs seek the

entry of a final judgment against Defendant, LUFTHANSA

GERMAN AIRLINES, for compensatory and punitive

damages as a result of LUFTHANSA’s failures in connection

with LEONARD KRYS’ serious in-flight illness on

November 30, 1991 during LUFTHANSA’s flight 463 from

Miami to Frankfurt.

FINDINGS OF FACT

1. LUFTHANSA breached its common law duty owed to

LEONARD KRYS on November 30, 1991 while a ticketed

passenger an board flight number 463.

A-39

Evidenced in the record by the testimony of the following;

Jurgen Freund, p. 271, in. 4-6; p. 272, in. 5-25: p. 273, in.

1. Captain Paul Roitsch, p. 300, In. 5-24: p. 341, in. 22-

25; p 342, In. i-S, in. 19-25; p. 343, in. 1-18; p. 34S, In. 3-

22. Samuel Fischmann, M.D., p. 419, in. 1-9: p. 424, in.

1-9; p. 431, In. 16-21. Captain Hans Schnabl, p. 78, in.

2-4; p. 83, In. 1221; p. 84, in. 1-14; p. 94, 1-n. 6-11; p.

SS6, in. 7-12; p. 561, In. 2S; p. 562, in. 1-5. Leonard

Krys, p. 104, In. 18-19; p125, in. 4-7.

2. LUFTHANSA failed to take adequate measures to

determine the life-threatening medical condition of

LEONARD KRYS and failed to render, provide and/or

secure necessary medical care.

Evidenced in the record by the testimony of the following:

Jurgen Freund, p. 190, in. 16-22; p. 191, in. 9-11, in. 20-

21; p. 194, in. 22-25; p. 195, in. 1-6, 1-ii. 12-18; p. 197,

in. 1-3, in. 7-25; p. 233, in. 8-14; p. 242, in. 4-7; p. 248,

In. 23-25; In. 249, in. 1-2; p. 252, 10-13: p. 262, in. 2-9;

p. 267, in 12-17; p. 268, in. 22-25; p. 2610, In. 1; p. 272,

in. 5-25; p. 273, In.1; p. 274, in. 7-15, in. 23-25; p. 275,

in. 1-3. Captain Paul Roitsch, p. 302, in. 1-14; p. 304, in.

16-25; p. 305, in. 16; p. 313, in. 13-17: p. 3.15, in. 12-21;

p. 316f In. 6-11; p. 327, in. 16-25; p. 330, in. 19-2S; p.

337, in. 15-18; p. 345, in. 3-22. Plaintiffs, Exhibit 3,

record p. 390, in. 22-25; 391, in. 1-9. Captain Hans

Schnabl, p. 86, in. 13-20; p. 87, in. 4-16, in. 23-21; p. 88,

in. 1-2, in. 19-25; p. 89, in. 1-2; p. 92, in. 1-25; p. 93, in.

17-21; p. 94, In. 6-11, in. 20-24; p. 96, In. 21-25; p. 97, 1-

7a. 1-25; p. 98, in. 4-6; p. S54, in. 1-10p. 555, in. 1-5; p.

556, in. 2-12; p. 557, in. 3-12; p. 560, in. 2-5, in. 18-19; p.

561, in. 1-5, In. 17-19, in. 25; p. 562, in. 1-5, in. 18-25; p.

563, in. 1, in. 3-18. Samuel Fischmann, M.D., p. 202, in.

12-17; p. 203, in. 1-21; p. 417, in. 8-11; p. 42S, in. 6-12;

p. 429, in. 1-6; p. 430, in. 22-24. Jan Holloway, p. 169,

“7

bart

A-40

in. 10-12, p. 170, in. 12-23, in. 25; p. 171, in. 1-2, In. 18-

21; p. 172, in. 5, in. 8-13, in. 17-22; p. 173, in. 4-5; p.

174, in. 7-12, p. 175, in. 6-12; p. 176, In. 7-24; p. 177, in.

10-19; p. 473, In. 14-17, In. 20-22; p. 477, In. 3-9, In. 19-

25; p. 478, In. 1-3, In. 11-15; p. 479, In. 1-12, In. 15-25;

p. 480, In. 1-2, In. 10-25; p. 481, In. 1-5; p. 482, In. 3-9.

Tanya Banghard, p. 492, In. 14-15, In. 19-25; p. 493, In.

Laurent Wintringer, p. 505, In. 7- 12: p. 506, In. 22-25: p.

507, In. 18-21; p. 509, In. 7-16. Josie Curry, p. 47, In. 15-

25; p. 48, In. 1-18; p. 5O, In. 4-15; p. Sl, In. 2-15

In. 14-16; p. 53, In. 12-14, In. 19-22; p. 54, In. 4-12, In.

18-25; p. 55, In. 1-2, In. 9-23; p. 56, In. eae

17-25; p. 58, In. 17-25; p. 59, In. 1-4; p. 60,

24-25; p. 61, In. 1, In. 5-7; p. 63, In. 15-18;

In. 12-15; p. 65, In. 24-25. Leonard Krys, p 107, In. 7-

25; p. 108, In- 1-23; p. 110, In. 6-20; p. 111, In. 8-12, In.

20.-25; p. 112, In. 3-24; p. 113, In. 1-9, In. 11-24; p. 115,

In. 2-7; p. 116, In. 6-22; p. 132, In. 3-10-; p. 137, In. 11-

25; p. 138, In. 1-17; p. 139, In. 19-25; p. 140 1-14, In.

24-25; p. 141, In. 1-2; p. 142, In. 21-25; p. 143, In. 1-25;

p. 144, In. 6-12, In. 146, In. 20-25; p. 147, In. 1-17; p. 162,

In. 22-25; p. 163, In. 1-2, In- 8-11; p. 164, In. 3-4; p.

24-25;. p. 166, In. 1-4. Christian Maikowski, M.D.

214, In. 14-21; p. 115, In. 6-8.

3. LUFTHANSA failed to comply with its own policies

and procedures to the detriment of LEONARD KRYS and

failed to divert said aircraft and land at the nearest available

airport.

Evidenced in the record by the testimony of the following:

Jurgen Freund, p. 190, In. 16-22; p. 191, In. 9-11, In. 20-

21; p. 194, In. 22-25; p. 195, In. 1-6, In. 12-18; p. 197, In.

1-3, In. 7-25; p. 274, In. 12,-15. Captain Paul Roitsch, p.

A-41

300, In. 5-24; p. 302, In. 1-14; p. 306, In. 25; p. 307, In.

1-20; p. 308, In. 23-25; p. 309, In. 1-4, In. 16-24: p. 310,

In. 8-13, In. 17-24; p. 311, In. 9-16, In. 20-28; p. 312, In.

1-12; p. 318, In. 20-25; p. 319, In. 1-3; p. 325, In. 18-25,

p. 326, In. 11-25; P. 327, In. 1-8, in. 16-25; p. 340, In. 19-

24, p. 342, In. 19-25; 343, In. 1-18; p. 345, In. 3-22.

Plaintiffs’ Exhibit 2, record p. 389, In. 12-25; p. 390, In.

1-5. Samuel Fischmann, M.D., p. 202, In. 12-17: p. 203,

In. 1-21; p. 414, In. 10-15; Pp. 416, In. 17-20; p. 417, In.

8-11; p. 419, In. 3-9; Pp. 420, In. 22-23; p. 423, In. 24-25;

Pp. 424, In. 1-9, In. 20-21; , Pp. 425, In. 6-12; p. 429, In. 1-

6; p. 431, In. 16-21. Jan Holloway, p. 170, In. 12-23, In.

25; p. 171, Iri. 1-2, In. 18-21; p. 175, In. 6-12: p. 176, In.

14-24; p. 477, In. 3-9, In. 19-2S; p. 478, In. 1-3, In. 1115;

p. 479, In. 1-12, In. 15-25: p. 480, In. 1-2, In. 10-25; p.

481, In. 1-5; p. 482, In. 3-9. Tanya Banghard, p. 492, In.

14-15, In. 19-25; p. 493, In. 1-4, In. 18-20; -p. 494, In. 5-

10; p. 497, In. 16-20; p. 500, In. 13-17, p. 501, In. 2-23.

Laurent Wintringer, p. 505, In. 7-12; p. 506, In. 22-25; p.

507, In. 1821; p. 509, In. 7-16. Captain Hans Schnabl, p.

83, In. 12-21; p. 84, In. 1-25: p. 85, In. 1-10; p. 86, In. 13-

25; p. 87, In. 416, In. 23-25: p. 88, In. 1-2, In. 19-25: p.

89, In. 1-2; p. 92, In. 1-25; p. 93, In. 17-21; p. 94, In. 6-

11, In. 20-24; p. 96, In. 21-25: Pp. 97, In. 1-25; p. 98, In. 4-

6; p. 554, In. 1-10; p. 555, In. 1-5; p. 556, In. 2-12; p. 557,

In. 3-12; p. 559, In. 5-13; p. 560, In. 2-5, In. 18-19; p. 561,

In. 1-5, In. 17-19, In. 25; P. 562, In. 1-5, In. 18-25: p. 563,

In. 1, In. 3-18. Josie Curry, p. 47, In. 15-25; p. 48, In. 1-

18; p

25; p . 1-2, In. 9-23; p. 56, In. 5-16; p. 57, In. 17-

25; p - 17-25; p. 59, In. 1-4; p. 60, In. 8-16, In. 24-

25; p . 1, In. 5-17; P. 63, In. 15-18; p. 64, In. 2-6,

5; p. 65, In. 24-25. Leonard Krys, p. 113, In. 11-

4, In. 24-25; p. 115, In. 1-7: Pp. 132, In. 3-10; p.

; . 19-23; p. 141, In. 24-25; p. 142,

4-10, In. 20-25; p. 147, In. 1-17; p. 162,

12-

: p.

In. 10-12; p. 139, In

-6; p. 146, in.

A-42

In. 22-25; p. 163, In. 1-2; p. 164, In. 3-4.

4. LUFTHANSA, through its employees, servants and/or

agents, failed to observe and apply its own first aid

instructions regarding cardiac infarctions to the detriment of

its passenger, LEONARD KRYS.

Evidenced in the record by the testimony of the following:

Captain Paul Roitsch, p. 302, In. 1-14; p. 311, In. 9-16,

In. 2025; p. 312, In. 1-12; p. 326, In. 11-25; p. 327, In. 1-

8, In. 16-25; p. 330, In. 19-25, p. 340, In. 2.9-24; p. 345,

In. 3-22. Plaintiffs’ Exhibit 3, record p. 390, In. 22-25; p.

391, In. 1-9, Samuel Fischmann, M.D., p. 203, In. 1-21;

p. 414, In. 10-12; p. 416, In. 17-20; p. 419, In. 3-9; p. 420,

In. 22-23; p. 423, In. 24-25; p. 424, In. 1-9, In. 20-21; p.

425, In. 6-12; p. 429, In. 1-6; p. 430, In. 22-24. Leonard

Sommer, M.D., p. 441, In. 12-14; p. 463, In. 12-20. Jan

Holloway, p. 169, In. 10-12; p. 170, In. 12-23, In. 25; p.

171, In. 1-2, In. 18-21; p. 172, In. 5, In. 8-13, In. 17-22;

p. 173, In. 4-5; p. 174, In. 7-12; p. 176, In. 7-24; p. 177,

In. 10-19; p. 473, In. 14-17, In. 20-22; p. 476, In. 2-17; p.

477, In. 3-9, In. 19-25; p. 478, In. 1-3, In. 11-15; p. 479,

In. 1-12, In. 15-25; p. 480, In. 1-2, In. 10-25; p. 481, In.

1-5; p. 482, In. 3-9. Tanya Banghard, p. 492, In. 14-15,

In. 19-25; p. 493, In. 1-4, In. 18-20; p. 494, In. 5-10; P.

497, In. 16-20; p. 500, In. 13-17; p. 501, In. 2-23.

Laurent Wintringer, p. 502, In. 25; p. 503, In. 2; p. 505,

In. 712; p. 506, In. 22-25; p. 507, In. 18-21; p. 509, In. 7-

16. Captain Hans Schnabl, p. 87, In. 4-16, In. 23-25; p.

88, In. 1-2, In. 9-14; p. 93, In. 17-21; p. 96, In. 21-25; p.

97, In. 1-25; p. 98, In. 4-6, In. 24-25; p. 99, In. 1-24; p.

555, In. 1-5; p. 557, In. 3-12. Josie Curry, p. 47, In. 15-

25; p. 48, In. 1-18; p. 50, In. 4-15; p. 51, In. 2-15; p. 52,

In. 14-16; p. 53, In. 12-22; p. 54, In. 4-12, In. 18-25; p.

55, In. 1-2, In. 9-23; p. 56, In. 5-16; p. 57, In. 17-25; p.

58, In. 17-25; p. 59, In. 14; p. 60, In. 8-10, In. 24-25; p.

A-43

61, In. 1, In. 5-17; p. 65, In. 24-25. Leonard Krys, p.

107, In. 7-25; p. 108, In. 1-23; p. 110, In. 6-20; p. 111, In.

8-12, In. 20-25; p. 112, In. 3-24; p. 113, In. 11-24; p. 114,

In. 4-12; p. 116, In. 8-22, p. 132, In. 3-10; p. 137, In. 11-

25; p. 138, In. 1-17; p. 139, In. 19-25; p. 140, In. 1-14, In.

24-25; p. 141, In. 1-2; Pp. 142, In. 21-25; p. 143, In. 1-24;

p. 144, In. 6-12; p. 145, In. 2-6, In. 17-25; p. 146, In. 1,

In. 4-10, In. 20-25; p. 147, In. 1-17; p. 162, In. 22-25; p.

163, In. 1-2, In. 8-11; P. 165, In. 24-25; p. 166, In. 1-4.

Jurgen Freund, p. 190, In. 16-22; p. 191, In. 9-11; p. 194,

In. 22-25; p. 195, In. 1-6, In. 12-18; p. 197, In. 1-3, In. 7-

25; p.272, In. 11-25; p. 273, In. 1; p. 274, In. 3-15, In. 23-

2; p. 275, In. 1-15. Christian Maikowski, M.D., p. 214,

In. 14-21; p. 215, 1n. 6-8.

5. LUFTHANSA failed to contact its ground personnel in

order to obtain medical assistance.

Evidenced in the record by the testimony of the following:

Captain Hans Schnabl, p. 94, In. 1-5; p. 100, In. 8-15; p.

556, In. 2-6; p. 562, In. 18-25; p. 5G3, In. 1.

Evidenced in the record by the testimony of the following:

Jurgen Freund, p. 275, In. 8-15. Captain Paul Roitsch,

P. 301, In. 5-12, In. 16-18; p. 302, In. 1-14, In. 19-24; p.

303, In. 10-11; p. 304, In. 16-25: Pp. 305, In. 1-6; p. 306,

In. 25; p. 307, In. 1-20; p. 315, In. 12-21; p. 318, In. 20-

25; p. 319, In. 1-3; p. 324, In. 22-25; p. 337, In. 15-18; p.

340, In. 19-24; p. 341, In.22-25: Pp. 342, In. 1-5, In. 19-25:

Pp. 343, In. 1-18; p. 345, In. 3-22. Samuel Fischman, M.D.,

p. 417, In. 8-11; p. 419, In. 3-9: p. 431, In. 16-21.

Captain Hans Schnabl, p. 83, In. 12-21; p. 84, In. 1-14; p.

LS SNE WAL Nk vs SOLA IA TO NOEL? CLEARS OE ROR wilde.

A-44

87, In. 4-16, In. 23-25; p. 88, In. 1-2, In. 19-25; p. 89, In.

1-2; p. 92, In. 1-25; p. 93, In. 17-21; p. 94, In. 6-11, In.

20-24; p. 554, In. 1-10; p. 555, In. 1-5; p. S56, In. 2-12; p.

557, In. 3-12; p. 560, In. 2-5, In. 18-19; p. S61, In. 1-5, In.

17-19, In. 25; p. 562, In. 1-5, In. 18-25; p. 563, In. 1, In.

3-18. Leonard Krys, p. 107, In. 7-10; p. 112, In. 1424;

114, In. 24-25; p. 115, In. 1-7. Jan Holloway, P. 176, In.

14-24.

7. LEONARD KRYS was not comparatively negligent

while a passenger on LUFTHANSA’s flight 463, on

November 30, 1991. While experiencing the symptoms of

a heart attack throughout flight 463, LEONARD KRYS was

not responsible to divert and land the aircraft but did seek the

assistance of LUFTHANSA, through its employees, agents

and/or servants, who failed to make an independent

assessment and address their own company rules and

regulations regarding the symptoms presented.

Evidenced in the record by the testimony of the following:

Captain Paul Roitsch, p. 302, In. 1-24; p. 303, In. 10-11;

p. 304, In. 16-25; p. 305, In. 1-6; p. 310, In. 8-13, In. 17-

24; p. 311, In. 9-16, In. 20-25; p. 312, In. 1-12; p. 313, In.

13-17; p. 315, In. 12-21; p. 316, In. 6-11; p. 325, In. 18-

25; p. 326, In. 11-25; p. 327, In. 1-5, In. 16-25; p. 330, In.

19-25; p. 337, In. 15-18; p. 340, In. 19-24; p. 341, In. 22-

25; p. 342, In. 1-5, In. 19-25; p. 343, In. 1-18; p. 245, In.

3-22.

Plaintiffs’ Exhibit 3, record p. 390, In. 22-25; p. 391, In.

1-9. Jurgen Freund, p. 190, In. 16-22; p. 191, In. 9-11, In.

20-21; p. 194, In. 22-25; p. 195, In. 1-6, In. 12-18; p. 197,

In. 1-3, In. 7-25; p. 233, In. 8-14; p. 242, In. 4-7; p. 248,

In. 23-25; p. 249, In. 1-2; p. 252, In. 10-13; p. 262, In. 2-

9; p. 267, In. 12-17; p. 268, In. 22-25; p. 269, In. 1; p.

A-45

272, In. 5-25; p. 273, In. 1; p. 274, In. 7-15, In. 23-25: p.

275, In. 1-3. Captain Hans Schnabl, p. 86, In. 13-20: p.

87, In. 4-16, In. 23-25; Pp. 88, In. 1-2, In. 19-25; p. 89, In.

1-2; p. 92, In. 1-25; p. 93, In. 17-21; p. 94, In. 6-11; In.

20-24; p. 96, In. 21-25; Pp. 97, In. 1-25; p. 98, In. 4-6: p.

554, In. 1-10; p. 555, In. 1-5; p. 556, In. 2-12; p. 557, In.

3-12; p. 560, In. 2-5. In. 18-19; p. 561, In. I-5, In. 17-19,

In. 25; p. 562, In. 1-5, In. 18-25; p. 563, In. 1, In. 3-18.

Samuel Fischmann, M.D., Pp. 202, In. 12-17; p. 203, In. 1-

21; p. 417, In. 8-11; P. 425, In. 6-12; p. 429, In. 1-6; p.

430, In. 22-24. Jan Holloway, p. 169, In. 10-12: p. 170,

In. 12-23, In. 25; p. 171, In. 1-2. In, 18-21; p. 172, In. 5,

In. 8-13, In. 17-22; p. 173, In. 4-5; p. 174, In. 7-12; p.

175, In. 6-12; p. 176, In. 7-24: p. 177, In. 10-19; p. 473,

In. 14-17, In. 20-22; p. 477, In. 3-9, In. 19-25; p. 478, In.

1-3, In. 11-15; p. 479, In. 1-12, In. 15-25; p. 480, In. 1-2.

In. 1025; p. 481, In. 1-5: p. 482, In. 3-9. Tanya

Banghard, p. 492, In. 14-15, In. 19-25; p. 493, In. 1-4, In.

18-20; p. 494, In. 510; Pp. 497, In. 16-20. Laurent

Wintringer, p. 505, In. 7-12; Pp. 506, In. 22-25; p. 507, In.

18-21; p. 509, In. 7-16. Josie Curry, p. 47, in. 15-25; p.

48, In. 1-18; p. 50, In- 4-15; P. $1, In. 2-15; p. 52, In. 14-

16; p. 53, In. 12-14, In. 19-22: p. 54, In. 4-12, In. 18-25;

Pp. 55, In. 1-2, In. 9-23; p. 56, In. 5-16; p. 57, In. 17-25; p.

58, In. 17-25; p. 59, In. 1-4; p. 60, In. 8-16, In. 24-25; p.

61, In. 1, In. 5-7; p. 63, In. 15-18; p. 64, In. 2-6, In. 12-

15; p. 65, In. 24-25. Leonard Krys, p. 107, In. 7-25; p.

108, In. 1-23; p. 110, In. 6-20: p. 111, In. 8-12, In. 20-25:

P. 112, In. 3-24; p. 113, In. 1-9, In. 11-24; p. 115, In. 2-7;

Pp. 116, In- 6-22; p. 132, In. 3-10; Pp. 137, In. 11-25; p, 138,

In- 1-17; p. 139, In. 19-25; Pp. 140, In. 1-14, In. 24-25; p.

141, In. 1-2; p. 142, In. 21-25: Pp. 143, In. 1-25; p. 144, In.

6-12; p. 146, In. 20-25; p. 147, In. 1-17; p. 162, In. 22-25;

Pp. 163, In. 1-2, In. 8-11; Pp. 164, In. 3-4; p. 165, In. 2425;

p. 166,

in. 1-4. Christian Maikowski, M.D., p. 214, In. 14-21; p.

A-46

215, In. 6-8.

8. LEONARD KRYS suffered the symptoms of a cardiac

infarction, as described by the American Medical Association

and LUFTHANSA’s Manual, while a passenger on Lufthansa

flight 463 from Miami, Florida to Frankfurt, Germany within

the first one and one-half (I 1/2) to three (3) hours of the ten

(10) hour flight based upon the greater weight of the

evidence.

Evidenced in the record by the testimony of the following:

Captain Paul Roitsch, p. 313, In. 13-17. Leonard

Zwerling, M.D., p. 349, In. 10-13; p. 526, In. 5-7; P. 531,

In. 20-21. Peter Segall, M.D., p. 361, In. 9-11; p. 368, In.

24-25; p. 369, In. 1-22; p. 376, In. 13-14; p. 535, In. 8-11;

p. 536, In. 3-25; p. 537, In. 1; p. 545, In. 6-9. Plaintiffs,

Exhibit 3, record p. 390, In. 16-21. Samuel Fiscmann,

M.D., p. 202, In. 7-10; p. 203, In. 1-21; p. 204, In. 3-17;

p. 205, In. 4-16; p. 409, In. 22-24; p. 421, In. 16-21; p.

422, In. 12-15; p. 423, In. 24-25; p. 425, In. 6-12; p. 429,

In. 1-6; p. 430, In. 22-24. Leonard Sommer, M.D., p.

434, In. 18-25; p. 438, In. 3-8; p. 440, In. 4-21; p. 441, In.

12-14; p. 452, In. 7-14; p. 463, In. 12-20. Jan Holloway,

p. 169, In. 10-12; p. 170, In. 12-23, In. 25; p. 171, In. 1-2,

In. 18-21; p. 172, In. 5, In. 8-13, In. 17-22; p. 173, In. 4-5;

p. 174, In. 7-12; p. 175, In. 6-12; p. 176, In. 7-10; p. 177,

In. 10-19; p. 473, In. 14-17, In. 20-22; p. 47G, In. 217; p.

477, In. 3-9, In. 19-25; p. 478, In. 1-3, In. 11-15; p. 479,

In. 1-12, In. 15-25; p. 480, In. 1-2, In. 10-25; p. 481, In. 1-

5. Josie Curry, p. 47, In. 15-25; p. 48, In. 1-18; p. 49, In.

9-12, In. 20-23; p. 51, In. 2-15, In. 24-25; p. 52, In. 1-6,

In. 14-16; p. 53, In. 12-14, In. 19-22; p. 54, In. 4-12, In.

18-25; p. 55, In. 1-2; p. 56, In. 15-16; p. 57, In. 17-28; P.

58, In. 17-25; p. 59, In. 1-4, p. 60, In. 8-16, In. 24-25, p.

61, In. 1, In. 5-17; p. 65, In. 24-25. Leonard Krys, p.

107, In. 7-25; p. 108, In. 1-23; p. 110, In. 6-20; p. 111, In.

A-47

8-12, In. 20-25; p. 112, In. 3-24; p. 113, In. 1-9; p. 114, In.

17-19; p. 116, In. 8-22; p. 137, In. 11-25; p. 138, In. 1-17;

P. 139, In. 19-25; p. 140, In. 1-14, In. 24-25; p. 141, In. 1-

2; p. 142, In. 21-25; p. 143, In. 1-24; p. 144, In. 6-12; p.

145, In. 2-6, In. 17-25; p. 146, In. 1-7, In. 20-25; p. 147,

In. 1-17; p. 152, In. 10-22; p. 162, in. 15-25; p. 163, In. 1-

2, In. 8-11, In. 18-19. Jurgen Freund, p. 190, In. 16-22:

Pp. 191, In. 9-11, In. 20-21; p. 194, In. 22-25: p. 195, In. 1-

6, In. 12-18; p. 197, In. 1-3, In. 7-25. Christian

Maikowski, M.D., p. 212, In. 16-23: p. 213, In. 5-10, In.

21; p. 214, In. 14-21; p. 215, In. 6-8, In. 12-16; p. 220, In.

19-24; p. 222, In. 1-7.

9. LEONARD KRYS sustained Significant permanent

injury as a direct result of the failure on the part of

LUFTHANSA’s flight captain in failing to land the aircraft

at an available airport so that passenger LEONARD KRYS

could receive needed thrombolytic care.

Evidenced in the record by the testimony of the following:

Leonard Zwerlingi M.D., p. 350, In. 22-25; p. 351, In. 1; p.

352, In. 6-10; p. 354, In. 1-5, In. 13-25; p. 355, In. 1, In.

14-20; p. 360, In. 1-6; p. 522, In. 8-16; Pp. 527, In. 4-6; p.

532, In. 23-25; p. 533, In. 1-8. Peter Segall, M.D., p.

363, In. 24-25;

p. 364, In. 1-11; p. 3GS, In. 14-24; p. 370, In. 18-21, In.

25; p. 371, In. 1-8; p. 372, In. 8-12. Samuel Fischmann,

M.D., p. 411, In. 3-4. Leonard Sommer, M.D., p. 446,

In. 19-22; p. 447, In. 3-9; p. 448, In. 3-8, In. 14-19; p. 454,

In. 2-7, In. 16-18; p. 463, In. 23-25; p. 464, In. I-4; p. 466,

In. 23-25; p. 467, In. 1-8. Christian Maikowski, M.D.., p.

218, In. 15-23; p. 219, In. 6-25.

10. LEONARD KRYS sustained significant anterior

chamber heart wall damage as a direct result of the delay in

his receiving proper cardiovascular care.

a mesaassaeacasceeeeece reece

A-48

Evidenced in the record by the testimony of the following:

Leonard Zwerling, M.D., p. 350, In. 22-25; p. 351, In. 1;

p. 352, In. 6-10; p. 353, In. 3-8; p. 354, In. 1-5, In. 13-25;

p. 355, In. 1, In. 14-20; p. 357, In. 20-25; p. 358, In. 1-2,

In. 14, In. 20-21; p. 360, In. 1-6; p. 522, In. 8-16; p. 527,

In. 4-6; p. 532, In. 23-25; p. 533, In. 1-8. Peter Segall,

M.D., p. 363, In. 24-25; p. 364, In. 1-11; p. 365, In. 14-24;

p. 370, In. 18-21, In. 25; p. 371, In. 1-8; p. 372, In. 8-12.

Leonard Sommer, M.D., p. 446, In. 19-22; p. 447, In. 3-9;

p. 448, In. 3-8, In. 14-19; p. 454, In. 2-7, In. 16-18; p.

456, In. 17-20; p. 439, In. 1-5; p. 463, In. 23-25; p. 464,

In. 1-4; p. 466, In. 23-25; p. 467, In. 1-8. Christian

Maikowski, M.D., p. 217, In. 4-6, In. 17-19, In. 23-25; p.

219, In. 6-25.

11. As a direct and proximate result of LUFTHANSA’s

negligence, LEONARD KRYS incurred medical expenses

and related expenses in the amount of $21,295.23, and will

incur further medical and related expenses in the future.

Evidenced by Plaintiffs, Exhibits 9 and 11 and by the

testimony of the following:

Leonard Sommer, M.D., p. 464, In. 22-25; p. 465, In. 1-7.

Leonard Zwerling, M.D., p. 523, In. 25; p. 524, In. 1-6,

In. 10-14. Leonard Krys, p. 118, In. 2-6, In. 1-8-25; 119,

In. 1, In. 17-24; p. 128, In. 11-24.

12. As a direct and proximate result of LUFTHANSA’s

negligence, LEONARD KRYS suffered severe, grievous and

Evidenced in the record by the testimony of the following:

Leonard Zwerling, M.D., p. 353, In. 3-8; p. 354, In. 18-

25; p. 355, In. 1, In. 14-20; p. 356, In. 23-25; p. 357, In.

3-7, In. 11, In. 20-25; p. 358, In. 1-2, In. 14, In. 20-21; p.

360, In. 16; p. 516, In. 23-25; p. 517, In. 1-6; p. 522, In.

A-49

8-16; p. 526, In. 18-24; p. 527, In. 4-6; p. 532, In. 1-6, In.

13-17; In. 23-25; p. 533, In. 1-8. Peter Segall, M.D., p.

361, In. 24-25; p. 362, In. 1-18: p. 364, In. 24-25; p. 365,

In. 1-6, In. 14-24; p. 373, In. 1-7, In. 15-24; p. 374, In. 19-

22, p. 375, In. 4-5,

In. 7-15; p. 384, In. 7-10; p. 539, In. 21-25; p. 540, In. 1-

3. REBECA KRYS, p. 393, In. 17-18; p. 402, In. 8-18; p.

403, In. 5-8. Leonard Sommer, M.D., p. 454, In. 2-7, In.

16-18; p. 456, In. 17-20, In. 23-25; p. 457, In. 1:

In. 1-5. p. 466, In. 23-25; p. 467, In. 1-15; p. 468

1 .

In. 11-24; P. 129, In. 2-19: p. 130, In. 2-15; p. 131, In.

10-14; p. 148, In. 9-20; p. 164, In. 3-19. Alejandro Krys,

p. 182, In. 9-12; p. 183, In. 3-10, In. 19-25; p. 184, In. 1-

3, In. 18-25; p. 185, In. 1-2, In. 17-25; p. 186,In. 1-4, In.

20-25; p. 187, In. 1-5. Christian Maikowski, M.D., p.

217, In. 4-6, In. 17-19; p. 218, In. 15-23; p. 219, In. 6-25.

13. As a direct and proximate result of Lufthansa’s

negligence, Leonard Krys’ life expectancy has been

Significantly reduced.

Evidenced in the record by the testimony of the following:

Leonard Zwerling, M.D., p. 355, In. 14-20; p. 358, In. I-

21; p. 359, In. 6-13; p. 520, In. 21-25; p. 521, In. 1. Peter

Segall, M.D., p. 361, In. 24-26; p. 362, In. 1-5, In. 14-25:

Pp. 363, In. 1-18; p. 364, In. 24-25: p. 365, In. 1-6; p. 374,

In. 23-25; p. 375, In. 1-5.

Evidenced in the record by the testimony of the following:

A-50

Peter Segall, M.D., p. 362, In. 13-25; p. 363, In. 21-18, p.

364, In. 24-25; p. 365, In. 1-6.

15. As a direct and proximate result of Lufthansa’s

negligence Leonard Krys’ chance of future complications and

future cardiovascular problems is significantly increased.

Evidenced in the record by the testimony of the following:

Peter Segall, M.D., p. 361, In. 22-25; p. 362, In. 1-5, In.

13-25; p. 363, In. 1-18; p. 364, In. 24-25; p. 365, In. 1-6;

p. 374, In. 23-25; p. 375, in. 1-5.

16. As a direct and proximate result of LUFTHANSA’s

negligence, REBECCA KRYS has been deprived of spousal

services, society and comfort of her husband, LEONARD

KRYS.

Evidenced in the record by the testimony of the following:

Rebecca Krys, p. 394, In. 8-25; p. 395, In. 1, In. 13-16; p.

396, In. 12-25; p. 397, In. 4-14, In. 21-23; p. 398, In. 11-

16; p. 400, In. 2-4, In. 8-13; p. 401, In. 16-24; p. 402, In.

8-23; p. 403, In. 11-18, In. 23-25.

Evidenced in the record of by the testimony of the

following: REBECCA KRYS, p. 393, In. 13-18; p. 402, In.

13-23; p. 403, In. 1-8.

18. LEONARD KRYS"’ physical and emotional problems

and limitations occurring just after and as a result of

Lufthansa’s negligence have had a profound and negative

impact on REBECA KRYS’ lifestyle and welibeing.

A-51

Evidenced in the record by the testimony of the

following: Rebecca Krys, p. 402, In. 19-23; p. 403, In. 9-25.

19. LUFTHANSA is entitled to a set-off, in accordance

with Florida Statute §768.76 and agreement of the parties, in

the amount of $1,724.98 paid by collateral sources toward

medical and related expenses incurred by Plaintiffs,

LEONARD KRYS and REBECCA KRYS.

20. Plaintiffs are not entitled to an award of punitive

damages in that Lufthansa’s conduct did not tise to the level

of callous, cruel, careless, willful

and/or reckless indifference to the safety, welfare, health and

well being of its passenger, LEONARD KRYS.

CONCLUSIONS OF LAW

1. LUFTHANSA, as a common tarrier, owed

LEONARD KRYS the duty to exercise the highest degree of

care for his safety as a passenger on fight 463, on

November 30, 1991.

2. LUFTHANSA breached its duty of careand as a direct

and proximate cause result of that breach, LEONARD KRYS

extent of injuries, past and future pain and suffering and

residual disability LEONARD KRYS i: entitled to

compensatory damages in the amount of om million eight

hundred thousand dollars (1,800,000.00).

3. As a direct and proximate result of LJFTHANSA’s

negligence, REBECCA KRYS has been and continues to be

deprived of the spousal services, society and :omfort of her

A-52

husband, LEONARD KRYS, and is entitled to $600,000.00

for loss of consortium in the past and the future, as

compensatory damages for REBECCA KRYS.

4. LUFTHANSA, through its employees, agents and/or

servants, did not exhibit a callous, cruel, careless, willful

and/or reckless indifference to the safety, welfare, health and

well being of its passenger, LEONARD KRYS such as

would warrant a punitive damage award. In White

Construction Co., Inc. v. Dupont, 455 So2d 1026 (Fla.

1984) the Florida Supreme Court reiterated the standard to

be met to justify the imposition of punitive damages: "(t]he

character of negligence necessary to sustain an award of

punitive damages must be of a ‘gross and flagrant character,

evincing reckless disregard of human life, or of the safety of

persons exposed to its dangerous effects, or there is that

entire want of care which would raise the presumption of a

conscious indifference to consequences, or which shows

wantonness or recklessness, or a grossly careless disregard

of the safety and welfare of the public, or that reckless

indifference to the rights of others which is equivalent to an

intentional violation of them."’ Id. at 1028-29 (quoting

Carraway V. Revell, 116 So2d 16,20 n.12 (Fla. 1959) ).

This Court finds LUFTHANSA’S actions to fall outside the

standard enunciated above.

5. The Warsaw Convention does not apply when a

passenger’s injury results from the normal, expected

operation of the aircraft. The United States Supreme Court

in Air France v. Saks, 470 U.S. 392 (1985), defined an

“accident” in accordance with the Warsaw Convention as an

unexpected or unusual event or happening that is external to

the passenger.

6. The post-heart attack treatment of passenger

LEONARD KRYS was not an “accident” within the meaning

A-53

of the Warsaw Convention as defined by the United States

Supreme Court. See Order Denying Defendant’s Motion for

Summary Judgment, page 3, entered by Judge Daniel T.K.

Hurley on December 17, 1994.

7. The Warsaw Convention is not applicable to the facts

of this case and the law to be applied is that of the State of

Florida. Recently Judge Lenore C. Nesbitt, in Dotti _v.

American Airlines, U.S. Dist. Ct. Case No. 94-0089-CIV-

NESDITT, held that "if no accident occurs within the

meaning of the Warsaw Convention” then the Warsaw

Convention does not apply and, based on choice of law

analysis, Florida law applied to the negligence claim. See

irli , 739 F.2d 130

(3d Cir. 1984); Fischer v. Northwest Airlines, Inc., 623 F.

Supp. 1064 (N.D.

Ill. 1985); | Husserl v. Swiss Air Transport Co., 351 F.

Supp. 702 (S.D.N.T. 1972).

8. The state law negligence claim is not preempted by the

Federal Aviation Act which preempts state laws relating to

rates, routes, or services. See Order Denying Defendant’s

Motion for Summary Judgment, page 3, entered by Judge

Daniel T.K. Hurley on December 17, 1994. The recent

decision of Margolis v. United Airlines, Inc., 811 F. Supp.

318 (E.D. Mich. 1993) stands four square for the proposition

that the preemption provision of the Airline Deregulation

Act, incorporated into the FAA, was not intended to preclude

common law negligence actions. The only Florida decision

on the subject of federal preemption, Martin v. Eastern

Airlines, Inc., 630 So. 2d 1206 (Fla. 4th DCA 1994),

followed the decision in Margolis. The Court in Martin held

that § 130S (a) (1) did not preempt common law actions

9. Negligence, if any, on the part of Dr. Samuel Fischm-

A-54

ann and/or any third party was not an efficient intervening

cause breaking the chain of causation between

LUFTHANSA’s negligence and Plaintiffs’ damages. Any

negligence on the part of Dr. Samuel Fischmann does not

absolve-LUFTHANSA of liability. The question of whether

to absolve a negligent actor of liability is more a question of

responsibility. Gibson v. Avis Rent-A-Car Systems, Inc., 386

So. 2d 520 (Fla. 1980) (citing W. Prosser, Law of Torts,

Section 44 (4th Ed. 1971); L. Green, Rationale of Proximate

Cause, 14270 (1927); Comment, 1960 Duke L. J. 88 (1960)

) . The general rule of law regarding whether an intervening

Cause is a superseding cause is that an initial tortfeasor will

he relieved from liability where the Plaintiff's damages were

brought about by an independent, efficient intervening cause.

Gibson, 386 So. 2d at S22. Am intervening cause is

"efficient", however, only if it is truly and completely

independent of, and not in any way “set in motion” by, the

original tortfeasor’s negligence. Waters v. ITT Rayonier,

Inc., 493 So. 2d 67, 68 (Fla. Ist DCA 1986) . See also

Townsend v. Westside Dodge, Inc., 642 So. 2d 49 (Fla. Ist

DCA 1994,) . If an intervening cause is foreseeable the

original negligent actor may still be held liable. Gibson, 386

So. 2d at 522. The question of whether an intervening cause

is foreseeable is for the trier of fact. Id (citing, Vining v.

Avis Rent-A-Car Systems, Inc., 354 So. 2d 54 (Fla. 1977);

Exchange Bank of St. Augustine v. Florida National Bank of

Jacksonville, 292 So. 2d 361 (Fla. 1974); Cruz v. Hundley,

371 So. 2d 698 (Fla. 3rd DCA 1979); Railway Express

Agency, Inc. v. Garland, 269 So. 2d 708 (Fla. Ist DCA

1972); Savarese v. Hill, 128 So. 2d 775 (Fla. 3rd DCA

1961)).

10. LUFTHANSA is liable because its conduct, by and

through its employees, servants and/or agents, set in motion

a chain of events resulting in injury to Plaintiffs. A person

who creates a dangerous situation may he deemed negligent

A-55

because he violates a duty of care. Gibson v. Avis Rent-A-

Car Systems, Inc., 386 So. 2d 520, 522 (Fla. 1980). It is

not necessary for the initial tortfeasor to foresee the exact

nature of the ensuing injury or the precise manner in which

it occurs. Townsend v. Westside Dodge, Inc., 642 So. 2d

49, 50 (Fla. lst DCA 1994) (emphasis added). 1

11. LUFTHANSA, by and through its employees,

servants and/or agents, deviated from accepted air industry

standards and practices.

DONE AND ORDERED this 24th day of October 1995,

in Chambers, at Miami, Florida.

See Worthington v. U.S., 21 F. 3d 399, 404 (ith Cir.

1994) for a detailed analysis and discussion of Florida

negligence principles regarding intervening causes.

A-56

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

LEONARD KRYS and

REBECA KRYS CASE NO. 92-2488- CIV-

HURLEY

Plaintiffs,

Defendant.

ORDER DENYING DEFENDANT’S MOTION FOR

SUMMARY JUDGMENT

THIS CAUSE comes before the Court upon the

defendant’s motion for summary judgment. Having reviewed

the record, the memoranda and oral argument of counsel,

and relevant authorities, the undersigned enters the following

order.

On November 30, 1991, Plaintiff, Leonard Krys, suffered

a heart attack on a Lufthansa international flight travelling

from Miami, Florida to Frankfurt, Germany. Plaintiff seeks

damages for the alleged post-heart attack negligence of the

partial summary judgment and seeks a determination that the

alleged negligence constitutes an “accident” under Article 17

A-57

of the Warsaw Convention. Such a determination would

limit the plaintiffs damages to $75,000 and preempt the state

common law claim of negligence. In addition, defendant

seeks a determination that the Federal Aviation Act preempt

the plaintiff's state law claims.

Summary judgment is appropriate "if the pleadings,

depositions, answers to interrogatories, and admissions on

file, together with affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving

party is entitled to judgment as a matter of law."

Fed.R.Civ.P. 56(c). "The purpose of summary judgment is

to pierce the pleadings and to assess the proof in order to see

whether there is a genuine need for trial. " Wouters v.

i Fla., 9 F. 3 d 924, 928 (11th Cir. 1993)

(quoting Matsushita Elec. Indu: enith Radio Corp.,

475 U.S. 574, 587 (1986). Where, as here, the non-moving

moving party, in order to prevail, must do one of two things:

show that the non-moving party has no evidence to support

its case, or present "affirmative evidence demonstrating that

the non-moving party will be unable to prove its case at

trial." i Vv , 941

F.2d 1428, 1437-38 (11th Cir. 1991) (en banc).

It is inappropriate at the summary judgment stage for the

court to Weigh the evidence and determine the truth of the

matter. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

251, 106 S. Ct. 2505, 2511 (1986). Rather, the court’s

function is to determine whether there exists an issue for

trial. A review of the record reveals that defendant’s motion

for summary judgment must be denied.

Article 17 of the Warsaw Convention provides:

The carrier shall be liable for damage sustained in the

A-58

event of the death or wounding of a passenger or any

other bodily injury suffered by a passenger, if the

accident which caused damage so sustained took place on

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

of embarking or disembarking.

Warsaw Convention 4° U.S.C.A. § 1502 note (West

1976) (emphasis added). The Supreme Court has defined

"accident" as an “unexpected or unusual event or happening

that is external to the passenger." Air France v. Saks, 470

U.S. 392, (1985). "[I]}t isthe cause of the injury that must

satisfy the definition rather than the occurrence of the injury

alone." Id. at 399 (emphasis in original). The Warsaw

Convention does not apply when a passenger’s injury results

from the normal, expected operation of the aircraft. Id at

406. The court finds that the post-heart attack treatment of

passenger Leonard Krys was not an "accident" within the

meaning of the Warsaw Convention as defined by the United

States Supreme Court. See Air France v. Saks, 470 U.S.

392, (1985), see also Abranson v. Japan Airlines Co., Lid.,

739 F.2d 130 (3d Cir. 1984) (flight crew’s failure to permit

a passenger to use empty seats to lie down and administer a

self-help remedy to his hiatal hernia, not considered an

unusual or unexpected hapoening within the meaning of the

Warsaw Convention).

The court also finds that a state law negligence claim is

not preempted by the Federal Aviation Act which preempts

state laws “relating to rate:, routes, or services." See

49 U.S.C. § 1305 (West Supp. 1994). It is hereby

ORDERED and ADJUDGED that defendant’s motion for

summary judgment is DENIED, DONE and SIGNED in

Chambers at West Palm Beach, Florida this 17th day of

A-59

December 1994.

Daniel T.K. Hurley

United States District Judge

Copies furnished to:

John N. Romans

Jerome A. Pivnik

Tod Aronovitz

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.