Petition for Writ of Certiorari — Blotteaux v. Qantas Airways Airways Ltd. (No. 05-1516)

05 lial

No.

IN THE

Supreme Court of the Wnited States

EDWARD A. BLOTTEAUX, AN INDIVIDUAL,

PETITIONER

QANTAS AIRWAYS LIMITED

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

CLAY ROBBINS II]

Counsel of Re cord

MAGANA, CATHCART

& McCARTH)

1801 Avenue of the Stars,

Suite 600

Los Angeles, CA 90067

(310) 553-6630

Attorne ys for Petitioner

Edward A. Blotteausr

ARRAN AS RN AEF

CURRY & TAYLOR @ WASH O.C. @ (202) 393 4!14' @ USSCINFO.COMmM

i

QUESTION PRESENTED

This case presents an issue of international importance

for protection of air travelers, including United States

citizens traveling abroad, not addressed by this Court in

Olympic Airways v. Husain, 124 S. Ct. 1221, 1229 (2004):

Does an international carrier’s failure to adequately warn

its passengers of a risk of death or serious bodily injury

associated with certain conditions of air travel, a risk

known to the airline but not its passengers, constitute an

“accident” within the meaning of Article 17 of the

Warsaw Convention.

ll

TABLE OF CONTENTS

Page

FE ty A csansiscintienlnercindpenysitliclniclideniintaaselat diatinces ts

TR OF Fae Pe aiccsccincsectiorncicdaiccanitetiedacae ties iil

EE: SRE Me BORE SETS EST Be RMP Ec Be ]

Fis ty yt ee eRe OMe De) SON LC HD pe MIRON EMER E oreCSedl ]

RELEVANT PROVISIONS INVOLVED ..............cccsccsoccceccescececcceecees ]

SP ENGI soseiaisticibdevnsiscpcntnalaien dannii caaaeingta eer ete

REASONS FOR GRANTING THE PETITION ..........:ccccosccocscosscceessees i)

I i ico ctecttiedpaiaadiiicinimiakone 26

APPENDIX

CePCael CATE CEI cra scsnsicadiecentctncessinbeiabsentnipctiiabanctind la

EPRRETSCE CUTE IE wivcaci cst cbc cite ical decaicin iene 7a

ill

TABLE OF AUTHORITIES

Page

CASES

AIR FRANCE V. SAKS, 470 U.S. 392 (1985) ..........cecceceeee passim

ANDERSON V. LIBERTY LOBBY, INC., 477 U.S. 242

(MERE RE ASCE ie Ae FREE Peek Des le ort pao aS a EE 9

BLANSETT V. CONTINENTAL AIRLINES, INC., 379

Se a ae 23

CHARAS V. TRANSWORLD AIRLINES, 160 F.3D 1259

rr Na 24

DAY V. TRANS WORLD AIRLINES, INC., 528 F.2D 31

Sar TU i a 11, 12

EASTERN AIRLINES, INC. V. FLOYD, 499 U.S. 530

5 NERSOIRRIRIR CEE SIBORE Lo Est ROMER? ts MNCS Ie ee EER REARS: SOP ACHE R OTOP Ren ele a ae 13

EL AL ISRAEL AIRLINES, LTD. V. TSENG, 525 U.S.

OR a TAR ae ae NE RCN NS ECM SE OE ROSEN 10

FULOP V. MALEV HUNGARIAN AIRLINES, 175

SUPE 2 Gl (SAPP, FT DEY avi ivcncccvntavevssencsocccasnes 11, 14, 22, 26

GEIER V. AMERICAN HONDA MOTOR CORP., 529 US.

RE ASE TCR er ats CNN BORE TEP OES TOE OM PS FED 25

IN RE AIR DISASTER AT LOCKERBIE, SCOTLAND ON

DECEMBER 21, 1988, 37 F.3D 804 (2D CIR. 1994) oo. 25

MAXWELL V. AER LINGUS LTD., 122 F.SUPP.2D 210

CO: IE vaich niin eiciiiieAwakeiancdeeh neater abate ii 10, 21, 26

OLYMPIC AIRWAYS V. HUSAIN, 1248S. CT. 1221 (2004) 7, 14, 18

iv

RODRIGUEZ V. ANSETT AUSTRALIA LTD., 383 F.3D

ap TED aiikcsiciciscsadlcecotihcicnaniecinetecedihicessdindasadesea 8, 20, 23

SALERNO V. PAN AM WORLD AIRWAYS, INC., 606

Be es ee cE Dtkcinieceicdebbvsiicirtesesitpinekipiisietaasuadiicepcedbaiies 10

TSEVAS V. DELTA AIRLINES, (N.D. ILL.) 1997 WL

Me paiscicchcsarincsachitcttgete baiiaactaierstindedgnlatae Dideseapiaaiaiedcésuibsidbesbininabdtidies 21

WALLACE V. KOREAN AIRLINES, 214 F.3D 293 (2D

Fils MEO s Laden daisoiosiiactigcecsa A cuaelacucdeincbadendaavadddlemigcitamtadieanapisercunie 10

STATUTES

SS Beier We INL FP acociccu sues oucvastenteunndechiadvadie tinanahontleaticdaanteenaiicnialin 1

EE i re Ce Oi icicnsdeecesidenstacd niscbsinanisitancidcbilaaesretind l

TREATIES

THE CONVENTION FOR THE UNIFICATION OF

CERTAIN RULES RELATING TO INTERNATIONAL

IIE TES TRIN sopisonsseicoveenctacinienyneesnsobeanushbenioastainnenttneebenniseitics 12

OTHER AUTHORITIES

B. EKLOF, M.D., ET AL., VENOUS THROMB-

EMBOLISM IN ASSOCIATION WITH PROLONGED AIR

TRAVEL, DERMATOL SURG., (1996, 22:637-641) ........cccccseesceeseee 5

J.H. SCURR, M.D., TRAVELER’S THROMBOSIS, THE

JOURNAL OF THE ROYAL SOCIETY FOR THE

PROMOTION OF HEALTH, VOL. 122 (MARCH, 2002) ................. 5

MEDICAL ADVICE FOR AIRLINE PASSENGERS,

AEROSPACE MEDICAL ASSOC. (MAY, 2002) ........ccccccscssoscsseesees 3

RICHARD GARDNER, “THE WARSAW CONVENTION

Vv

AT THREE SCORE YEARS AND TEN,” 24 AIR AND

ee SE RRR RE ARSE: SI a Dc es ea, SOP 10

R.S. HUGHES, M.D., ET AL., FREQUENCY OF VENOUS

THROMBOEMBOLISM IN LOW TO MODERATE RISK

LONG DISTANCE AIR TRAVELERS, THE NEW

ZEALAND AIR TRAVELERS THROMBOSIS STUDY,

THE LANCET, VOL. 362 (JANUARY, 2008)...........ccccccccssseessecesces 3

T.N. BETTES, M.D. AND D.K. MCKENNA, M.D.

MEDICAL ADVICE FOR COMMERCIAL AIR

TRAVELERS, AMERICAN FAMILY PHYSICIAN, VOL.

eg SR RR ee SOIR eae 3

]

0. .{IONS BELOW

Petitioner seeks review of the opinion rendered

herein by the United States Court of Appeals for the

Ninth Circuit which is unreported is the Ninth Circuit

No. 03-56837. A copy of the Memorandum is

reproduced in the Appendix as, (la-6a)'. The order of

the United States District Court for the Central

District of California is also unreported. A copy of the

document is reproduced in the Appendix as, (7a-15a).

JURISDICTION

The decision of the United States Court of

Appeals for the Ninth Circuit was filed on March 1,

2006. The jurisdiction of this Court is invoked pursuant

to 28 U.S.C. § 1254(1).

RELEVANT PROVISIONS INVOLVED

The Convention for the Unification of Certain

Rules Relating to International Transport by Air, Oct.

12, 1929, 49 Stat., part LI, p. 3000, TS No. 876 (1934),

reprinted in 49 U.S.C. § 40105 (1997) (“The Warsaw

Convention or Act”

‘Citations to the Appendix to the Petition as _a.

“The Warsaw Convention has been amended by the Agreement

Relating to the Liability Limitations of the Warsaw Convention

and the Hague Protocol, CAB 18900, approved by CAB Order E-

23680, May 13, 1966, 31 Fed. Reg. 7302 (1966), Certain Rules

Relating to International Carriage by Air Signed at Warsaw on 12

October 1929 as Amended by the Protocol Done at the Hague on

2% September 1955, signed at Montreal on 25 September 1975,

ratified by the United States 1998 reprinted in S. Exec. Rep. No.

105-20 (1998). These amendments do not affect Article 17.

2

Article 17 or the Warsaw Act states:

The carrier shall be liable for damage sustained

in the event of the death or wounding of a

passenger or any bodily injury suffered by a

passenger, if the accident which caused the

damage so sustained took place on board the

aircraft or in the course of any of the operations

of embarking or disembarking.

Article 24(1) of the Warsaw Act states:

In the cases covered by articles 18 and 19 any

action for damages, however unfounded, can only

be brought subject to the conditions and limits

set out in this Convention.

Article 24(2) of the Warsaw Act states:

In the cases covered by Article 17 the provisions

of the preceding paragraph shall also apply,

without prejudice to the questions as to who are

the persons who have the right to bring suit and

what are their respective rights.

3

STATEMENT

Petitioner developed DVT® while he was

traveling as a fare paying passenger on Qantas Airways

flights 615 and 26 from Cairns, Australia bound for Los

Angeles, California through Auckland, New Zealand,

on September 2, 2001. (8a). International airline

passengers, such as Mr. Blotteaux, are especially at risk

for developing DVT in flight because travel at high

altitudes for long durations increases the blood’s

coagulability, slowing blood flow and causing it to pool

in the lower legs. (10a-lla). Immobility, cramped and

restricted small seat pitch, compression of the thighs on

the seat edge, stagnant recycled air, and dehydration

due to the cabin’s low humidity levels contribute to the

pooling and clotting, seriously affecting circulatory

process, causing venous thromboembolism, or DVT. As

a clot grows, it casts off smaller clots that can move to

the heart and into the arteries of the lungs, blocking

blood flow and depriving the body of oxygen. In some

instances, the clot travels to the brain, causing a stroke.

“Deep Vein Thrombosis (DVT) and its associated condition, venous

thromboembolism are extraordinarily dangerous conditions

associated with high morbidity and mortality. In fact, the World

Health Organization considers the risk of DVT associated with

long duration air travel, to be so significant that it has

commissioned an international study of that health hazard and how

to reduce the risk. (See also, T.N. Bettes, M.D. and D.K.

McKenna, M.D. Medical Advice for Commercial Air travelers,

American Family Physician, Vol.- 60, pp. 801-10 (September,

1999); Medical Advice for Airline Passengers, Aerospace Medical

Assoc., at Page 11 (May, 2002); R.S. Hughes, M.D., et al.,

Frequency of Venous Thromboembolism in Low to Moderate Risk

Long Distance Air Travelers, the New Zealand Air Travelers

Thrombosis Study, The Lancet, Vol. 362, pp. 2039-44 (January,

2003).

(9a-10a).

At no time before September 26, 2001, had

Petitioner heard of DVT being associated with long

duration air flight. He did not know prior to the flight

that conditions in the aircraft could cause this life

threatening medical condition. Qantas failed to provide

any adequate information to Mr. Blotteaux identifying

DVT as a risk associated with long duration air travel,

and failed to direct him to any information concerning

steps to be taken to reduce or eliminate the potential

DVT risk. (3a).*

Petitioner developed DVT requiring

hospitalization, due to his immobility during the course

of the subject flights and from the passenger cabin

environment within Respondent’s aircraft.

Incontrovertible medical evidence also shows that it

was more probable than not that Mr. Blotteaux would

‘Qantas claims that for six months prior to the subject trip it had a

policy of showing a video during the course of their flights, a

portion of which mentioned DVT. (11a). Qantas does not present

any evidence establishing that it showed the video on the flights at

issue. Qantas does not present evidence that had the video been

shown, that passengers in business class (including the Petitioner)

were directed to a channel appropriate for viewing. ‘The

Petitioner, conversely, declared that he did not see the video

during his flights on September 26, 2001. (8a). Additionally, the

Petitioner did not read the “in flight” magazine, said by

Respondent to contain a DVT advisory. Respondent failed to

produce any evidence stating that it directed the Petitioner to read

the “in flight” magazine for important safety and health

instruction, without which the Petitioner was left to guess where

appropriate safety and health information (if any) would be located

among the plethora of other reading and entertainment materials

available to the Petitioner aboard Respondent ’s aircraft.

5

not have developed the medical conditions during

Respondent’s flights had he remained adequately

hydrated and _ periodically walked or performed

exercises in his seat during the flight. (10a-11a).

Petitioner showed that, long before the flight, air

carriers knew of the risk of DVT to passengers on long

international flights. Since 1954 reports in medical

literature have linked air travel with DVT and

pulmonary embolism. (See, J. H. Scurr, M.D., Traveler's

Thrombosis, the Journal of the Royal Society for the

Promotion of Health, Vol. 122. (March 2002)) A number

of reports appeared in medical literature, suggesting an

increased incidence of DVT among passengers who

have recently flown, perhaps in as many as | in 10.

Conditions contributing to increased susceptibility to

developing DVT include immobility in flight, decreased

air pressure, relative hypoxia in the flight cabin, and

dehydiation. (See, B. Eklof, M.D., et al., Venous

Thromb-embolism in Association with Prolonged . ur

Travel, Dermatol Surg., 1996, 22:637-641)

The International Air Transport Association

(“IATA”), an international commercial aviation

industry trade organization of approximately 275

members including Qantas, instructed its members as

early as 1986 to provide passengers with warnings

about DVT. The instructions were reiterated in 2001,

recommending that passengers be advised of the

condition at the time of ticket purchase. In 1996, the

Air Space Medical Association, participated in by

Qantas’s medical director, published its guidelines

describing how carriers should address DVT exposure

risks to their passengers. As part of this plan, by the

time of the Petitioner’s flight, many international

6

airlines had already implemented a program designed

to meaningfully instruct and inform passengers about

DVT. However, on flights 615 and 26, on September

26, 2001, the Respondent failed to adequately warn the

Petitioner about DVT, and as a result, the Petitioner

developed a life-threatening medical condition during

the course of the flight. (2a, 9a).

The Petitioner brought suit.in Federal District

Court seeking relief under Article 17 of the Warsaw

Act. The District Court granted summary judgment in

favor of the Respondent, ruling that the Petitioner’s

development of DVT failed to qualify as an “accident”

under Article 17. The Ninth Circuit affirmed.

In so ruling, a panel of the Ninth Circuit held

that (1) no “accident” under the Warsaw Convention

could have occurred with respect to an_ airline

passenger’s development of DVT under normal flight

conditions, and (2) there is no factual basis that Qantas

failed to adequately warn Mr. Blotteaux about the

dangers of DVT, or that any clear industry standard

against which Qantas’s warnings could be measured

against existed. Thus, the Court did not decide

whether an airline’s failure to warn of DVT, and the

consequent DVT injury, can constitute an accident for

purposes of Article 17.

In the view of the Ninth Circuit, merely because

materials concerning DVT were provided, despite

Qantas’s failure to direct Mr. Blotteaux’s attention to

those materials, Mr. Blotteaux’s failure to heed those

materials does not support any failure to warn on the

part of Qantas. Further, the Ninth Circuit viewed that

the Petitioner did not demonstrate any clear industry

lad

‘

standard against which the Respondent’s warnings

could be measured, despite the Respondent developing

a warning video, audio, and text, and being aware of

IATA recommendations. (11a).

The Ninth Circuit erroneously analogized

Petitioner’s disabling injury to that addressed in Air

France v. Saks, 470 U.S. 392 (1985), solely because the

Respondent’s flight took off, flew, and landed as

planned. The Ninth Circuit wrongty concluded that

Petitioner’s development of DVT resulted from nothing

other than his own internal reaction to the prolonged

sitting/inactivity attendant to any lengthy flight. The

Ninth Circuit dismissed the analogy to Olympic

Airways v. Husain, 124 S. Ct. 1221 (2004), by stating

that Petitioner’s failure to ask for assistance makes it

distinct from Husain. However, that assumption would

require the passenger to already know that immobility

and dehydration during a long international flight

under normal flying conditions poses a dangerous and

fatal risk to as many as 1 in 10 passengers, and as a

result of that knowledge ask for assistance in

ameliorating it.

Contrary to the Ninth Circuit’s interpretation,

Husain turns on two prongs: (1) whether the air carrier

had knowledge of the risk to a passenger, and (2)

whether the air carrier assisted the passenger in

ameliorating that risk. Husain involved a lack of

response by a flight crew to a passenger’s known

medical condition, similar to the Respondent’s lack of

an adequate warning to its passengers regarding

avoiding DVT risk. The Petitioner’s level of knowledge

of the high possibility of some of its passengers

developing DVT due to flight and cabin conditions

8

aboard the Respondent’s aircraft, is the same as a flight

crew’s level of knowledge of an asthmatic passenger’s

susceptibility to sitting near a smoking section. The

Petitioner’s failure to advise the Respondent of his

need for specific DVT safety instructions is irrelevant

and absurd in the analysis.

The Ninth Circuit erred in stating that the

Petitioner had no factual basis to argue whether an

airline’s failure to warn of DVT can constitute an

“accident” for purposes of Article 17, an issue left open

for discussion by the Ninth Circuit in Rodriguez v.

Ansett Australia Ltd., 383 F.3d 914, 919 (9'" Cir. 2004).

When contradictory evidence exists, it is for the trier of

fact to decide whether an “accident,” as defined under

Article 17, caused the passenger injury. Saks at 405-

The facts are disputed as to whether the

Petitioner saw a video warning, whether a video was

shown, and whether the Petitioner was given any other

information and warning regarding DVT by the

Respondent on the flight from Auckland to Los

Angeles. (5a-6a). Further, the Petitioner was not

directed to audio programming by the Respondent

advising of DVT risk. Lastly, the Respondent failed to

direct the Petitioner to written DVT risk warning

contained toward the back of the “in flight” magazine.

(10a).

Declarations and other supporting evidence

submitted on behalf of Petitioner provided substantial

unrebutted evidence establishing a connection between

the Petitioner’s injury and Respondent’s operation.

The Ninth Circuit was compelled to view the evidence

in light most favorable to the Petitioner, and could not

weigh the parties’ evidence. Anderson v. Liberty Lobby,

9

Inc., 477 U.S. 242, 245 (1986). The evidence should be

submitted to the trier of fact for resolution.

REASONS FOR GRANTING THE PETITION

I. IT IS IMPORTANT FOR THIS COURT TO

DETERMINE THAT THE IN’ FLIGHT

DEVELOPMENT OF DVI BY AN

INTERNATIONAL PASSENGER

RESULTING FROM THE CARRIER’S

FAILURE TO ADEQUATELY INFORM

ABOUT THAT RISK IS COMPENSABLE

UNDER ARTICLE 17 SO AS TO IMPROVE

AIR CARRIER OPERATIONS AND

PROTECT INTERNATIONAL PASSENGERS

FROM THE HEALTH CONSEQUENCES OF

CARRIER DECISIONS.

This Petition concerns an issue both of national

and international significance regarding the application

and scope of the term “accident” as used in the Warsaw

Act, and directly questions whether the Act will

continue to provide meaningful protection for the

international air traveling public.

The question raised has global significance

because the opinion of the Ninth Circuit potentially

jeopardizes the safety of all passengers on international

flights. The Ninth Circuit opinion undercuts the well-

recognized fundamental purpose of the Act, which is to

provide international passengers with compensation

where a carrier’s operations are causally connected

with a passenger’s injury. The purpose of the Act was

not only to foster the development of, at the time,

fledgling airline industry by achieving uniformity of

10

rules governing claims, but also to balance the interests

of injured passengers in receiving prompt recovery for

personal injuries with the interest of carriers seeking to

limit potential liability. See, Generally, Richard

Gardner, “The Warsaw Convention at Three Score

Years and Ten,” 24 Air and Space, L. 114 (1999); El Al

Israel Airlines, Ltd. v. Tseng, 525 U.S. 155, 169-170

(1999). The Ninth Circuit decision gives a Federal

Court imprimatur to an industry decision to withhold

vital health and safety information from passengers,

compounded by that industry’s refusal to affirmatively

act on a hazard about which most international

passengers are ignorant.

Now, commercial aviation is an established

industry and the countervailing balance of the

international passenger's needs has_ changed.

“Protection of the passenger ranks high among the

goals which the Warsaw signatories now look to the

Convention to serve.” Wallace v. Korean Airlines, 214

F.3d 293, 296-297 (2d Cir. 2000). The Warsaw Act

promotes passenger safety by ensuring that air carriers

remain responsible for maintaining safe operations to

benefit the welfare of their passengers. It is

internationally recognized that airlines should have

incentives to promote the safety and security of their

passengers. Maxwell v. Aer Lingus Ltd., 122 F.Supp.2d

210, 214 (D.Mass 2000); Salerno v. Pan Am World

Airways, Inc., 606 F.Supp. 656 (S.D.N.Y. 1985).

The subsequent amendments to the Act,

embodied in the Montreal Accords, resulted in the

signatory carriers consenting to a liability system

under which they assumed “virtual strict liability” for

death or injury to passengers. These amendments

11

were made, in part, at the behest of the United States,

aiming to assure our citizens of adequate protection in

the event they sustain injury on an international flight.

Day v. Trans World Airlines, Inc., 528 F.2d 31, 34-37

(2d Cir. 1975).

The United States, dissatisfied with the old

liability limits, invoked Article 39 of the Convention

and filed a notice of its intent to denounce the Act of

1965. Senator Robert F. Kennedy cogently articulated

the concerns of the United States underlying its

planned denouncement: “Over two million Americans

travel annually on international flights. Assuring that

their families are adequately protected in case of

accident is, consequently, a matter of wide-spread

importance...no one questions the fact that the

protection now afforded to international travelers is

woefully inadequate.” /d. At the conference in

Montreal, in February 1966, one day before the United

States denunciation was to become effective, a

compromise was brokered. Within the compromise was

an agreement on the part of the carriers to waive the

“all necessary measures” defense. Jd. As a result, the

Act is now seen as affording protection for all

passengers from hazards of air travel, spreading the —

cost of that protection among them. /d. at 36-37. By

waiving the defense of due care, liability under the Act

had become considered strict under modern tort

theories, although not totally absolute. Fulop v. Malev

Hungarian Airlines, 175 F.Supp.2d 651 (S.D.N.Y.

2001).

Thus, the passenger protection purpose of the

Act, and the public policy considerations it serves, form

an integral part of the analysis regarding the proper

12

scope and application of the Act. An evaluation that

ignores these subsequent developments of the Act

would revert the Act to its 1929 incarnation, at the

infancy of air travel, and ignore new dangers posed to

air travelers fostered by technological changes in the

industry over the intervening 77 years. Today, millions

of people annually experience commercial air travel at

altitudes exceeding 30,000 feet for periods longer than

16 hours, while the risks of aviation have changed

dramatically in ways unforeseeable in 1929 by the

-Warsaw Convention delegates. Nonetheless, the

original drafters intended to create a system of liability

and compensation rules to cover all hazards of air

travel. Day v. Trans World Airlines, supra, 528 F.2d at

38.

The Ninth Circuit’s ruling leaves as many as ten

percent of international air travelers who develop DVT

without remedy. These injuries result directly from the

refusal of air carriers to provide fare-paying passengers

with either adequate accommodations, or - at a

minimum - the health and safety information known to

the carriers. Rather than serving the drafters’ desire

to create an inclusive system, the Ninth Circuit’s ruling

frustrates it. Since air travel is an evolving endeavor,

with longer flight times and attendant risks, the .

definition of “accident” must remain current in order to ©

retain any relevance to the original goal of protecting

fare-paying passengers.

The ruling encourages air carriers to forego even

minimal health and safety presentations and warnings

to its international air passengers, rather than spread

the small cost of such warnings equally among all

passengers, as originally intended by the Act. To

13

protect air passengers, the traditional interpretation of

“accident” must be understood to include passenger

injuries that are shown to have a causal connection to

carrier operations and _ decisions. Sudden and

unexpected development of DVT is linked to carrier

operations and decisions. The Ninth Circuit’s denial of

compensation is therefore antithetical to a meaningful

interpretation of the term “accident” under Article 17.

Passengers seeking to hold a carrier liable for an

injury occurred during an international flight must

demonstrate under parameters of Article 17 that (1)

there was an accident, in which (2) a passenger suffered

death, wounding, or bodily injury, and (3) the accident

took place on board an aircraft, or in the course of

embarking or disembarking. EKastern Airlines, Inc. V.

Floyd, 499 U.S. 530, 535-36 (1991). The term “accident”

was not defined by the drafters.

This court first addressed the meaning of that

term in Air France v. Saks, supra, 470 U.S. 392 holding

that the concept of “accident” must be “flexibly”

applied after assessment of all the circumstances

surrounding a. passenger’s injury. To properly

implement that flexible interpretation, this Court

stated, “liability under Article 17 of the Warsaw

Convention arises only if the passenger’s injury is

caused by an unexpected or unusual event or

happening that is external to the passenger.” Jd. at 405.

This Court further assured that the passenger’s

right to compensation would be assured by requiring

that “accident” be broadly interpreted, to wit: “any

injury is in a product of a chain of causes, and we

require only that the passenger be able to prove that a

14

link in the chain was an unusual or unexpected event

external to the passenger. Thus, while an ‘accident’

must cause a passenger’s injury, it need not be the sole

causal factor.” /d.

Recently, this Court applied the concept of

“accident” so as to protect international passengers

from injuries arising from failure of crew members to

respond to known health needs of a passenger. Olympic

Airways v. Husain, supra, 124 §.Ct. 1221. This Court,

in Husain decided that an omission, failure to respond

to information, could satisfy the requirements of an

“unexpected” or “unusual” event or happening.

This Court knew that whether an event or

happening connected in some way with carrier

operations is “unexpected” or “unusual” must be

evaluated from an objective perspective. (See, e.g.

Fulop v. Malev, supra, 175 F.Supp.2d at 670-672.)

From that perspective, the majority of this Court found

absolutely no distinction under Articie 17 between

carrier acts and carrier omissions that cause injury to

passengers. This Court, in Husain, declined the

carrier’s suggestion that it consider ambient cigarette

smoke in the cabin as a normal condition of flight. This

Court also refused to hold that the preexisting

sensitivity of the decedent to cigarette smoke was

relevant or conclusive to a carrier’s Article 17 liability.

Instead, this Court found determinative the fact that

the crew was aware of the passenger’s sensitivity, but

nonetheless did not act on that information when

accommodation was available.

Applying the Saks and Husain criteria to the

15

facts in this case leads inexorably to the conclusion that,

since a causal relationship exists between Petitioner’s

flight-related medical emergency and the Respondent’s

knowledge of the danger and subsequent inaction (10a-

lla), the requisite nexus exists for Petitioner to be

compensated under Article 17. Qantas was and is

aware of the risk of DVT to which thousands of its

passengers are exposed to annually. “santas was also

aware of steps to be taken to prevent DVT risk

exposure to its passengers (10a-1 1a).

Despite the available information, the

Respondent failed to meaningfully act to inform its

passengers of the risk. Instead, the Respondent placed

the information about DVT in the back of its “in flight”

magazine, or on an unspecified audio channel. (10a-11a).

The Respondent made no meaningful effort to inform

the Petitioner regarding important information about

DVT and that it could be found in the back of the “in

flight” magazine, or on a particular audio channel. (10a).

Additionally, Respondent claims to have

addressed the DVT risk on an in-flight video. (11a).

However, the video was never shown the Petitioner,

nor was he directed on what channel to find the video at

his business-class seat. Thus, Qantas broke with its

own practice of showing the safety video on the flight.

Even if the video was actually shown, Qantas failed to

direct the Petitioner to the appropriate channel,

amounting to not dissipating the relevant safety

information at all. Thus, Mr. Blotteaux was left

guessing as to where, if at all, he may find safety

information regarding a dangerous medical condition

that he was unaware of, but the airline was. Just as

Olympic Airways’s failed response to information

16

regarding Dr. Husain’s medical susceptibility was

“unexpected” or “unusual,” so too must. the

Respondent’s failure to warn the Petitioner regarding

susceptibility to DVT on long international flights be

considered objectively “unexpected or “unusual.”

Application of the Saks and Husain explanation

of an “unexpected or unusual event,” coupled with an

analysis of the causal relationship between the event

and airline operations, reveals that Petitioner’s injury

is compensable under Article 17. Mr. Blotteaux’s

development of DVT is wholly related to cabin

conditions and Qantas’s decision to inadequately inform

and advise its passengers of DVT risk. (10a-1la). The

record is uncontroverted that Mr. Blotteaux did not

have DVT prior to boarding the flight. His injuries

were wholly caused during flight, by the conditions

created and decisions made by Qantas regarding its

operations. Further, evidence presented by Petitioner

reflects that DVT is far from an _ unforeseeable

idiosyncratic reaction limited to the peculiarities of a

particular passenger. (9a-lla). Rather, its incidence in

international passengers is as high as ten percent. The

Respondent does not and cannot produce any expert

evidence refuting the connection between DVT and the

flight-related risk that has been well-known to air

carriers for almost 30 years. (9a-11a).

In order to encourage air carriers to

meaningfully promote passenger safety, this Court

should recognize that failure to warn of DVT risk

constitutes an “accident” under Article 17. Thus,

carriers would provide health and safety information to

air passengers, informing them on steps to take to

minimize health and safety risks. Air carriers would

17

not be unduly burdened by assuring that all

passengers, who pay their fare, ride on the carrier, but

lack knowledge about DVT risk, are informed of the

risk and any preventative measures. An air carrier is

uniquely able to control the dissemination of health

related information to its passengers. Once the carrier

fails to adequately inform its passengers of DVT risk,

the Act’s intent to impose the standard of “virtual strict

liability” for injuries occurring in course of international

flight is subverted.

This Court should take the opportunity to

reinforce the protective aspects of the Warsaw Act by

holding carriers responsible under Article 17, when it is

shown that their decision to withhold information from

the traveling public resulted in serious bodily injury.

Il. THE DECISION BELOW CONFLICTS WITH

THE DECISION OF THIS COURT ON AN

IMPORTANT QUESTION REQUIRING

RESOLUTION BY THIS COURT.

A. Contrary to the Conclusion Below, a

Passenger Injury Due to a Carrer’s

Failure to Adequately Inform Its

Passengers of a Serious Safety Risk

Associated With Conditions of Air Travel

(A Risk Known to the Carrier But Not Its

Passengers), Satisfies the Saks and

Husain Model for an _ Article 17

“Accident.”

The Ninth Circuit erroneously analogized

Petitioner’s disabling injury to that addressed by this

Court in Air France v. Saks, supra, 470 U.S. 392,

18

because the Respondent’s flight took off, flew, and

landed as planned. Under this faulty paradigm, if a

passenger suffers an injury causally related to the

carrier on an otherwise “normal” international flight, an

“accident” may only be found if that passenger

informed a crew member of a health concern before he

or she is stricken, and then only if the crew member’s

response to that information violates a “clear” industry

standard or policy. However, this standard would

require the passenger to already know that by taking

the flight he or she is exposed to a potentially fatal risk

- - and therein lies the whole point of the DVT litigation

domestically and internationally. The Petitioner did

not know he was at risk because the Respondent was

uniquely situated to inform him of it, but failed to

adequately do so.

The record here is entirely distinguishable from

Saks. Saks stands for the proposition that since

nothing unusual happened on an otherwise “normal”

flight, and the condition and injury suffered was

internal to the passenger, the airline had no reason to

anticipate or act on the risk. Thus, it would not be

considered objectively “unusual” or “unexpected” if a

carrier did not act upon information it neither had, nor

had reason to anticipate. In the present case, the

Respondent knew of the hazard to all of its passengers,

but failed to give an adequate warning regarding it.

The facts in the present case are entirely

consistent with this Court’s pronouncement in Olympic

Airways v. Husain, supra, 124 S.Ct. 1221. In Husain,

the crew was informed of a passenger’s medical

sensitivity. The air carrier failed to properly act on the

information to prevent the injury. This Court found

19

that an omission may satisfy the requirement of an

“unexpected” or “unusual” event. A majority of This

Court found absolutely no distinction under Article 17

between carrier acts and omissions, if a passenger

injury results. Had the airline not had the information

regarding the medical condition, it would not have been

required to act. In the present case, tlle Respondent

had extensive information regarding the medical

condition and risk of DVT. Similar to Husain, the

Respondent failed to appropriately act by not giving an

adequate warning to prevent the Respondent’s injury.

The. discussion in Husain addressed a record

that presumed the existence and breach of an “industry

standard and airline policy.” The same result would be

obtained following the Husain analysis, where the

carrier is indisputably aware of a risk to which

thousands of its passengers are exposed to annually,

and the carrier fails to adequately warn of the risk,

especially since the Respondent acknowledges

developing videos, audio, and print materials regarding

the risk. (ER 292-293). This scenario must be

considered to be objectively “unexpected” or “unusual,”

since the carrier had _ specific information and

procedures, yet failed to implement them. Certainly

from the innocent injured person’s perspective, the

earrier’s failure to take action to obviate a risk it was

aware of would be both “unexpected” and “unusual.”

The passenger in Husain had a _ medical

susceptibility to conditions on the flight - the proximity

of the smoking section negatively affected his asthma.

The air carrier was aware of the susceptibility of the

passenger to these flight conditions, yet omitted to act

to prevent the asthma attack. Similarly, the

20

Respondent was aware of the susceptibility of its

passengers to DVT. The susceptibility of air

passengers to DVT directly results from the

characteristics of the Respondent’s cabin compartment

combined with extended flight time of international

flights. Despite the knowledge of the danger posed by

the flight conditions, the Respondent failed to

adequately warn the Petitioner of the danger of

developing DVT on the flight.

In its ruling below, the Ninth Circuit noted that

Qantas had a standard practice to show a video on the

risk of DVT. (10a). Thus, there was a standard airline

policy in the present case unlike in Rodriguez v. Ansett

Australia, Ltd., 383 F.3d 914, 917 (9"" Cir. 2004), where

the Ninth Circuit stated that a violation of a “clear

industry standard or airline policy” is required before

an omission will be considered “unexpected” or

“unusual.” Instead of determining that proof of a

violation of industry or airline policy would make

Qantas’s failure to warn “unexpected” or “unusual,” the

Ninth Circuit misinterpreted Rodriguez. In the

present case, the Ninth Circuit oversimplified

Rodriguez to stand for the proposition that the

“occurrence of DVT on an otherwise unremarkable

flight does not constitute an accident.” (5a).

Even if this Court is to take this simplistic

definition on its surface, the flight in question would not

be considered “unremarkable” since the Respondent

“unexpectedly” failed to follow its own standard

practice of showing the DVT warning video, or

adequately directing the Petitioner toward it. A

standard policy of educating passengers regarding

safety risks associated with the flight is quite

21

ineffective if the passengers are not adequately

informed by the air carrier of where to find that

information.

B. The Petitioner’s Development of DVT was

Related to the Respondent’s Operations.

It is beyond any reasonable dispute that “cause”

under Article 17 is to be expansively construed. There

need be only some link in the injury producing

“unusual” or “unexpected” event that was external to

the passenger. Air France v. Saks, supra, 470 U.S. at

406; Maxwell v. Aer Lingus, 122 F.Supp.2d 210 (D.Mass

2000).

“All injury is the product of a chain of causes”

and the passenger need only prove “some link in the

chain was unusual or unexpected event external to the

passenger.” Saks, supra, 470 U.S. at 406. The claim in

this litigation pertains to air carrier accommodations

and the services provided to passengers. It is accepted

that services provided by flight attendants to

passengers during flight is a characteristic of air travel

having a positive relation to the operation of the

aircraft. Tsevas v. Delta Airlines, (N.D. Ill.) 1997 WL

767278. Since providing information to passengers is a

vital service provided by the air carriers and their

employees, the omission by the air carrier when it

refrains from providing even adequate safety and

health information regarding the cabin environment

on a flight directly relates to the carrier’s conduct in its

operations.

As shown in the record, the Petitioner’s DVT

22

developed due to cabin conditions and due to the

Respondent’s failure to adequately and meaningfully

advise, inform, educate or warn its passengers. (9a-11a).

Under Saks, an “accident” need not be the sole cause of

the injury, but only has to be a link in the causal chain.

Saks, supra, 470 U.S. at 406. The Petitioner’s exposure

to cabin conditions, combined with the Respondent’s

failure to adequately warn of the danger and furnish

vital health and safety information created such a

causal link. Thus, paraphrasing Fulop, Mr. Blotteaux’s

“injury may be causally traced to the carrier’s fateful

choice[s] and represented an ‘external’ factor that

brought about at least the particular...injury here in

contention.” Fulop v. Malev Hungarian Airlines,

supra, 175 F.Supp.2d at 671.

A requisite nexus between carrier operations

and passenger injury is met where, as here, substantial

evidence is presented to support a conclusion that a

carrier failed to meaningfully respond to information of

a known risk. Once a relationship exists between the

Petitioner’s injury and the Respondent’s operations,

the injury becomes compensable under Article 17,

consistent with this Court’s instructions in Saks and

Husain. Accordingly, the purpose and intent of the

Warsaw Act is fulfilled, as originally presented and as

amended pursuant to the United States’ requirements

of adamantly preserving the safety and security of

international passengers.

The Ninth Circuit distinguishes the present case

by citing Rodriguez and its narrow interpretation of

Husain. The Ninth Circuit states that because Husain

involved a response by a flight crew to a medical

condition, and Rodriguez did not, the present case is

23

identical to Rodriguez. This interpretation is too

narrow to be practical, as courts would then have to

carve out individual exceptions to any response not

identical to Husain, rather than set a straightforward

rule for air carriers to follow. The interpretation

argued for by the Petitioner would save judicial and

private resources by avoiding future litigation

regarding various exceptions, and uphold the intent of

the Warsaw Act.

C. Lower Court Decisions in the Present

Case, as well as in Rodriguez and

Blansett Both Ignore the Supreme Court’s

Admonition Against Inserting Common

Law Principles Into Article 17 Analysis,

and They Conflict, Thus Creating a

“Catch 22” for International Passengers

Who Develop DVT.

The Ninth Circuit opinions in the present case

and in Rodriguez v. Ansett Australia, Ltd., supra, 383

F.3d 914, and the Fifth Circuit decision in Blansett v.

Continental Airlines, Inc., supra, 379 F.3d 177, both

improperly inject common law concepts of standards

and policies into their discussion of an “accident.” The

Ninth Circuit premised its opinions upon the injured

passenger’s inability to establish a violation of a “clear

industry standard or airline policy,” or to “demonstrate

any clear industry standard against which Qantas’s

warnings could be measured in any event” at the time

of the flight to warn about DVT risk. Rodriguez, supra,

383 F.3d at 918. (6a). The Ninth Circuit, however,

neglected to address whether the Respondent’s

departure from its own standards could objectively be

considered “unexpected” or “unusual.”

24

The Fifth Circuit in Blansett ignores evidence of

the violation of industry standards in existence in 2001,

concluding that the failure to warn was not “unusual”

or “unexpected” because the warnings provided

complied with regulations issued by the Federal

Aviation Administration. Blansett, swpra, 379 F.2d at

182. The Fifth Circuit, therefore, limits the

determination of what is “unusual” or “unexpected,”

insofar as an international carrier’s failure to warn, to

whatever is required by the FAA at a particular point

in time. As such, the Fifth Circuit authorizes the FAA

to determine compensability under the Act. This

rationale is faulty, because, while the FAA may

establish minimum standards for international flights

arriving in or departing from the United States, it does

not have the power to set standards for the

interpretation of international treaties, such as the

Warsaw Convention. The FAA sets only the absolute

minimum standards for domestic and international

carriers to abide. Air carriers may still be found liable

for act or omissions that meet or exceed the FAA

minimum requirements. However, the Fifth Circuit’s

opinion could, lead to different applications of the

definition of “accident” in failure to warn claims,

diverging from the intent of the Warsaw Convention to

create standards protecting passengers.

Blansett’s reference to Federal Aviation

Regulations is contravened by a lack of any indication

of Congressional intent to preempt the field of

international carrier warning practices. (See, e.g.,

Charas v. Transworld Airlines, 160 F.3d 1259 (9'° Cir.

1998).) Moreover, federal regulations only describe a

carrier’s minimum response. They do not provide a

carrier with a complete defense. Jn Re Air Disaster at

25

Lockerbie, Scotland on December 21, 1988, 37 F.3d 804,

815 (2d Cir. 1994). Where federal law, as here, creates

only a floor, preemption will not be found. Geier v.

American Honda Motor Corp., 529 U.S. 861, 867 (2000).

All of these opinions’ analyses of Article 17 are

deficient and contrary to Husain since they each use

common law concepts to determine what is

“unexpected” and “unusual” as a matter of law. The

opinions base their conclusions on industry standards or

federal regulation. Although reference to such

standards may be instructive concerning what might

objectively be considered “unexpected” or “unusual,”

such evidence cannot reasonably be considered

conclusive. Adopting the Ninth Circuit’s view would

allow a carrier to delineate and control its own liability

under the Act by simply not adopting a standard, or

selectively choosing to follow one.

The lower Circuit decisions presume that a

carrier’s compliance with negligence-based common law

principles of standards and/or regulations is dispositive

of Article 17 liability. However, there is no reason in

the history of the Act, or the Supreme Court’s

pronouncements from Saks and Husain, to support a

determination that an injury arising from an industry’s

failure to establish or implement a standard to respond

to a known risk should not also be compensable,

regardless of what the FAA may or may not require.

Determination of whether an airline’s failure to

address a known risk to thousands of passengers is

“unexpected” or “unusual,” and thus an “accident,”

must turn on an objective evaluation “after assessment

of all the circumstances.” Saks, supra, 470 U.S. at 405;

26

Fulop, supra 175 F.Supp.2d at 670; Maxwell v. Aer

Lingus, supra, 122 F.Supp.2d at 211. In some

instances, this inquiry may be informed by “industry

norms, internal policies and procedures, and general

standards of care.” Fulop, 175 F.Supp.2d at 665.

However, the absence of carrier policies, standards, or

FAA regulations must not be allowed to relieve a

carrier of its responsibility under the Act for a

passenger injury caused by a carrier’s conscious refusal

to adopt, implement, or perform a standard.

CONCLUSION

In order to protect the safety of international air

travelers, to secure uniformity as to this important

issue of international law and to resolve importan.

conflicts between the decision below and the decisions

of other Circuits as well as this Court, plenary review is

in order.

Respectfully submitted,

Clay Robbins III

Counsel of Record

MAGANA, CATHCART

& McCARTHY

1801 Avenue of ®. Stars,

Suite 600

Los Angeles, CA 90067

(310) 553-6630

Attorneys for Petitioner

Edward A. Blotteaux

la

(any footnote(s) trail end of each document)

No. 03-56837

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

EDWARD A. BLOTTEAUX, an individual, Plaintiff-

Appellant,

V.

QANTAS AIRWAYS LIMITED, Defendant -

Appellee, and UNITED AIRLINES, INC., Defendant.

February 15, 2006, Submitted, Pasadena, California

March 1, 2006, Filed

COUNSEL: Clay Robbins III, Magana, Cathcart &

McCarthy, Los Angeles, California, for the plaintiff-

appellant.

Rod D. Margo, Scott D. Cunningham, Condon &

Forsyth, LLP, Los Angeles, California, for the

defendants-appellees.

JUDGES: Before: B. Fletcher, Callahan, Circuit

Judges, and England, District Judge

2a

Edward A. Blotteaux (“Blotteaux”) appeals the district

court’s grant of summary judgment in favor of Qantas

Airways Limited (“Qantas”) on _ grounds that

Blotteaux’s development of Deep Vein Thrombosis

(“DVT”) fails to qualify as an accident compensable

under the terms of Article 17 of the Warsaw

Convention'. We have jurisdiction pursuant to 28

U.S.C. § 1291, and we affirm the district court’s

judgment.

A grant of summary judgment is reviewed de novo.

Ocean Advocates v. U.S. Army Corps of Eng’rs, 402

F.3d 846, 858 (9'" Cir. 2005). Interpretation od the

Warsaw Convention, a multilateral treaty governing

the liability of air carriers engaged in international

transportation, is a question of law also subject to de

novo review. Hosaka v. United Airlines, Inc., 305 F.3d

989, 993 (9'* Cir. 2002), cert. denied, 5387 U.S. 1227

(2003).

On or about September 26, 2001, Blotteaux developed

DVT, a condition in which blood clotting forms in the

deep veins of the legs, while seated in business class

aboard an international flight operated by Qantas

between Australia and the United States. It is

undisputed that the flight in question was uneventful,

with no equipment malfunction or other anomaly

occurring. It is further undisputed that Blotteaux did

not request any assistance or other accommodation

from Qantas personnel during the course of the flight,

and while he does claim to have noticed some leg

discomfort as the trip progressed, Blotteaux did not

seek any medical treatment for some thirteen days

after concluding his air travel.

oa

The susceptibility of airline passengers to development

of DVT, particularly on long flights, is well recognized.

It is undisputed that Qantas developed an informational

video on the risks of DVT, and precautionary measures

to be taken in the face of that risk, for use on long-haul

flights. Qantas’ standard custom and practice, since

March 2001, has been to show its informational video on

all international flights, including the flight at issue. In

addition, it is undisputed that the Qantas in-flight

magazine, which was available on Blotteaux’s flight,

contained an article cautioning passengers on the risk

of developing DVT on long flights. Finally, Qantas’ in-

flight audio entertainment system included a segment

about the importance of maintaining blood circulation

during such flights.

Blotteaux makes two primary arguments in appealing

the judgment below. First, he argues that the term

“accident,” which triggers liability for bodily injury

under Article 17 of the Warsaw Convention, should be

interpreted flexibly in order to allow recovery for his

DVT-related damages. Secondly, Blotteaux contends

that he was not provided with any meaningful warning

as to the risk of DVT, and argues that Qantas’ failure to

adequately warn in that regard subjects the airline to

liability under the Warsaw Convention. As set forth

below, neither contention has merit.

Article 17 of the Warsaw Convention makes

international air carriers liable for bodily injury

sustained by a passenger “if the accident so sustained

took place on board the aircraft or in the course of any

of the operations of embarking or disembarking.” 49

Stat. 3018. Liability under Article 17 therefore hinges

in the present matter in whether or not Blotteaux’s

4a

development of DVT constitutes an “accident”, as that

term has been defined.

In Air France v. Saks, 470 U.S. 392 (1985), the Supreme

Court addressed the definition of “accident” for

purposes of assessing Article 17 liability because it

resulted from “the passenger’s own internal reaction to

the usual, normal, and expected operation of the

aircraft.” Id. at 406. In order to trigger liability, the

Court required that a passenger’s injury be “caused by

an unexpected or unusual event or happening that is

external to the passenger.” /d. at 405.

The rationale of Saks applies squarely to this case. No

evidence has been presented that anything unusual

occurred aboard the Qantas flight in question, or that

Blotteaux’s development of DVT was triggered by

anything other than his own internal reaction to the

prolonged sitting/inactivity attendant to any lengthy

flight. Blotteaux nonetheless argues that the reasoning

of a subsequent Supreme Court decision, Olympic

Airways v. Husain, 540 U.S. 644 (2004), should extend

to the present matter.

In Husain, the airline was held liable for a passenger’s

fatal asthma attack after the flight attendant

repeatedly refused to move the passenger out of the

proximity of the plane’s smoking section, despite

numerous requests from the passenger’s wife that an

allergy to cigarette smoke made that move imperative.

See Id. at 647. The Court found that the attendant’s

refusal to assist the passenger was an unusual and

unexpected event that satisfied the “accident”

requirement of Article 17. /d. at 646.

5a

The present case is factually distinguishable from

Husain because it is undisputed that the flight

personnel were not asked to assist Blotteaux in any

way and were not even notified of any discomfort on his

part. Moreover, in Rodriguez v. Ansett Australia Ltd.,

383 F.3d 914 (9 Cir. 2004), this court unequivocally

found that the occurrence of DVT on an otherwise

unremarkable flight does not constitute an accident

because, pursuant to Saks, the condition was

precipitated not by any unexpected or unusual event or

happening but instead by the passenger’s own internal

reaction to normal flight conditions. /d. at 917.

Rodriguez distinguishes Husain on grounds that it

involves a response by flight crew to the passenger’s

medical condition, a distinction equally applicable here.

Id. at 918. Consequently, with respect to an airline

passenger’s development of DVT under normal flight

conditions, we have already decided that no “accident”

under the Warsaw Convention could have occurred.

Blotteaux’s second argument is equally unavailing. He

contends that Qantas failed to meaningfully inform its

passengers about the risk of developing DVT on long-

haul flights, and argues that such a failure can be

analogized to the “accident” identified by the Supreme

Court in Husain. As Rodriguez makes clear, however,

Husain involved a response by the flight crew to the

passenger’s medical condition, a circumstance not

present in this case. /d. The only question left open by

Rodriguez, given our statement there that we need not

decide the issue, is whether an airline’s failure to warn

of DVT can constitute an accident for purposes of

Article 17. See Id. at 919.

There is no factual basis here for Blotteaux’s claim that

6a

Qantas failed to adequately warn him about the danger

of DVT. Since both video, audio, and written materials

concerning DVT were provided, the fact that Blotteaux

failed to heed those materials does not support any

failure to warn on Qantas’ part. In the face of those

warnings, Blotteaux’s claim that Qantas somehow “hid”

the risk of developing DVT is simply untenable.

Moreover, Blotteaux has failed to demonstrate any

clear industry standard against which Qantas’ warnings

could be measured in any event. In the absence of a

viable failure-to-warn claim, this case is squarely

controlled by Saks and Rodriguez.

AFFIRMED.

Footnote(s)

1. Convention for the Unification of Certain Rules

Relating to International Transportation by Air, Oct.

12, 1929, 49 Stat. 3000.

7a

No. CV 03-927-JFW (Shx)

UNITED STATES DISTRICT COURT FOR THE

CENTRAL DISTRICT OF CALIFORNIA

EDWARD BLOTTEAUX -v- QANTAS AIRWAYS

LIMITED, et al.

September 5, 2003, Decided

September 8, 2003, Entered

COUNSEL: For Edward Blotteaux, Plaintiff: Clay

Robbins III, Magana Cathcart & McCarthy, Los

Angeles, California

For Qantas Airways Limited, Defendant: Rod D.

Margo, Scott D. Cunningham, Evan K. McNamara,

Condon & Forsyth LLP. Los Angeles, California

JUDGE: PRESENT: HONORABLE JOHN F.

WALTER, UNITED STATES DISTRICT JUDGE

OPINION BY: JOHN F. WALTER

OPINION: CIVIL MINUTES - - GENERAL

PROCEEDINGS (IN. CHAMBERS): ORDER

GRANTING DEFENDANTS’ MOTION’ FOR

SUMMARY JUDGMENT

On July 25, 2003, Defendants United Airlines, Inc.

(“United”) and Qantas Airways Limited (“Qantas”)

filed separate Motions for Summary Judgment. On

August 4, 2003, Plaintiff Edward Blotteaux filed his

8a

Oppositions. On August 18, 2003, United and Qantas

filed separate Replies. The Court found the matter

appropriate for submission on papers without oral

argument. See Local Rule 7-15 (the Court may

dispense with oral argument on any mater unless

otherwise required); F'ed.R.Civ.P. 78. The matter was,

therefore, removed from the Court’s August 25, 2003

hearing calendar and the parties were given advance

telephonic notice. After considering the moving,

opposing, and reply papers, and the arguments therein,

the Court rules as follows:

I. Facts and Procedural Background

On September 8, 2001, Plaintiff traveled from Chicago,

Illinois to Los Angeles, California on United Flight No.

111. (UF P2.) Plaintiff remained in Los Angeles

overnight to visit with his sister. (Jd. at P3.) On

September 9, 2001, Plaintiff traveled from Los Angeles

to Auckland, New Zealand on Qantas Flight No. 26 (/d.

at P4.) Plaintiff was seated in business class while

traveling with Qantas. (/d. at P5.) On September 11,

2001, Plaintiff traveled from Auckland to Cairns,

Australia on Qantas Flight No. 616. (/d. at P6.) While

in Cairns, Plaintiff visited with his father and went

sightseeing, swimming, and snorkeling. (/d. at P7.)

Plaintiff remained in Cairns until September 26, 2001,

at which time Plaintiff traveled from Cairns to

Brisbane, Austrailia on Qantas Flight No. 615. (/d. at

P8.)

In Brisbane, Plaintiff boarded Qantas Flight No. 25

bound for Los Angeles, through Auckland, New

Zealand. (/d. at P9.) As the flight progressed, Plaintiff

felt increasingly uncomfortable and struggled to

9a

position himself to alleviate his discomfort. (/d. at P11.)

Plaintiff felt pressure on the back of his left calf due to

the position of the leg rest and attempted to adjust the

leg rest throughout the flight. Ud. at PP12-13.)

Although Plaintiff noticed a painful swelling behind his

knees upon arriving in Los Angeles, he did not report

the pain to a Qantas employee and did not seek

treatment from any medical practitioner while in Los

Angeles. (/d. at PP14-15 & 17.) There was nothing

usual_about the operation of the aircraft during Qantas

Flight No. 25 and there was no malfunction of any

equipment or component of the aircraft, including any

seat in which Plaintiff was sitting while he was on

board the aircraft. (/d. at PP26-28.)

Plaintiff visited with his sister in Los Angeles for a

couple of days, and, on September 28, 2001, Plaintiff

boarded United Flight No. 114 from Los Angeles to

Chicago. (/d. at PP16 & 18.) After arriving in Chicago,

the pain in Plaintiff's leg gradually became worse. (/d.

at P19.) On October 9, 2003, thirteen days after his

travel with Qantas was completed, Plaintiff sought

medical treatment from Dr. Thometz. (/d. at P20.) That

same day, Plaintiff was admitted to Swedish Covenant

Hospital and diagnosed with deep vein thrombosis

(“DVT”) and a pulmonary embolism. (/d. at P22.) DVT

is a condition in which a blood clot forms in the Jeep

veins of the legs. (Scurr Decl. P15; Exh. 13 to Robbins

Decl.) Complications occur when the clot, or part of it,

which has formed in the veins breaks away or

“embolizes” from the wall of the vein in the legs. (UF

P25.) If the embolus reaches a blood vessel through

which it cannot pass, it blocks the vessel. (/d.) Such a

blockage is called an embolism. (/d.)

10a

Qantas provides all passengers on all flights with in-

flight magazines. (De Rome Decl. P3.) The September

2001 issue of Qantas’ in-flight magazine, “The

Australian Way,” which was available to Plaintiff on

Qantas Flight No. 25, provides as follows:

When you're sitting upright and inactive for a

long period of time, several things can happen:

The central blood vessels in your legs can

be compressed, making it more difficult

for blood to get back to your heart.

Muscles can become tense, resulting in

backaches and a feeling of excessive

fatigue during, and even after, your flight.

The normal mechanism for returning fluid

to the heart can be inhibited, and gravity

can cause the fluid to collect in your feet

resulting in swollen feet after a long

flight.

Some studies have concluded that

prolonged immobility may be a risk factor

in the formation of Deep Vein Thrombosis

(DVT). Particular medical conditions may

increase the risk of formation of blood

clots if associated with prolonged

immobility.

Medical research indicates that factors

which may give you an increase risk of

blood clots in the legs include:

- personal of family history of DVT

- recent surgery or injury, especially

to lower limbs or abdomen

- blood disorders leading to

increased clotting tendency

- immobilization for a day or more

lla

- increasing age above 40 years

- oestrogen hormone _ therapy,

including oral contraceptives

- pregnancy

- tobacco smoking

- former or current malignant

disease

- obesity

: dehydration

- heart failure

- varicose veins

If you fall into any of these categories or you

have any concerns about your health and flying,

Qantas recommends you seek medical advice

before traveling.... While inflight, move your legs

and feet for three or four minutes per hour while

seated and move about the cabin occasionally.

Do the light exercises that we recommend below

and which feature on the inflight entertainment

system. (Exh. A to De Rome Decl.)

Qantas also created a video advising passengers about

DVT and the precautions that passengers should take

during a flight to prevent the development of DVT.

(Exh. A to Freedman Decl.; Freedman Decl. PP2-4.)

Since March 2001, it has been standard custom and

practice for Qantas to show the video on all of its

international flights, including Qantas Flight No. 25.

(/d.)

Plaintiff has stipulated that he developed DVT while

traveling on Qantas Flight No. 25, prior to traveling on

United Flight No. 114." (Stipulated Facts P8.) Plaintiff

has also stipulated that he did not request aid or inform

12a

any employee of United that he needed medical

attention during United Flight No. 114. (/d.)

IL. Standard

Summary Judgment is proper where “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 a judgment as a matter of

law.” Fed.R.Civ.P. 56(c) The moving party has the

burden of demonstrating the absence of a genuine issue

of fact for trial. Anderson v. Liberty Lobby, Inc. 477

U.S. 242, 256 (1986). A party opposing a properly made

and supported motion for summary judgment may not

rest upon mere denials but “must set forth specific facts

showing that there is a genuine issue for trial.”

Fed.R.Civ.P. 56(e). In particular, when the non-moving

party bears the burden of proving an element essential

to its case, that party must make a showing sufficient to

establish a genuine issue of material fact with respect

to the existence of that element or be subject to

summary judgment. See Celotex Corp. v. Catrett, 477

U.S. 317, 322 (1986).

An issue is genuine if evidence is produced that would

allow a reasonable jury to reach a verdict in favor of the

non-moving party. Anderson, 477 U.S. at 248. The

Court must assume the truth of direct evidence set

forth by the opposing party. See Hanon v.

Dataproducts Corp. 976 F.2d 497, 507 (9° Cir. 1992).

However, where circumstantial evidence is presented,

the Court may consider the _ plausibility and

reasonableness of inferences arising therefrom. See

Anderson, 477 U.S. at 249-50; TW Electrical Service,

l3a

Inc. v. Pacific Electrical Contractors Ass’n, 809 F.2d

626, 631-32 (9° Cir. 1987). In that regard, “a mere

‘scintilla’ of evidence will not be sufficient to defeat a

properly supported motion for summary judgment;

rather, the nonmoving party must introduce some

significant probative evidence tending to support the

complaint.” Summers v. Teichert & Son, Inc., 127 F.3d

1150, 1152 (9"" Cir. 1997) (internal quotations omitted).

In ruling on a summary judgment motion, “the judge’s

function is not himself to weigh the evidence and

determine the truth of the matter but to determine

whether there is a genuine issue for trial.” Anderson

477 U.S. at 249. Credibility determinations, the

weighing of the evidence, and the drawing of legitimate

inferences from facts are jury functions...” d. at 255.

III. Discussion

Plaintiff argues that Qantas and United should have

warned him about the risks of developing DVT and that

their failure to warn constituted an accident for

purposes of Article 17 of the Warsaw Convention. 49

Stat. 3000 (1934); T.S. 876 reprinted in 49 U.S.C.

§40105. Article 17 of the Warsaw Convention provides:

The carrier shall be liable for damage sustained

in the event of the death or wounding of a

passenger or any other bodily injury suffered by

a passenger, if the accident which caused the

damage so sustained took place on board the

aircraft or in the course of any of the operations

of embarking or disembarking.

Accordingly, in order to prevail on his complaint

l4a

against Qantas and United, Plaintiff must prove that an

“accident” was the cause of his injury. Air France v.

Saks, 470 U.S. 392, 396 (1985). The United States

Supreme Court defined “accident” as “an unexpected or

unusual event or happening that is external to the

passenger.” Jd. at 405. In addition, the Court stated

“when the injury 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, and Article 17 of the Warsaw Convention

cannot apply.” Jd. at 406.

In this case, there is no evidence that Plaintiff

developed deep vein thrombosis from an unexpected or

unusual event or happening that was external to

Plaintiff. See, e.g., Margrave v. British Airways, 643

F.Supp. 510, 512 (S.D.N.Y. 1986) (holding that

“extended sitting in an airplane, even in an

uncomfortable position, cannot properly be

characterized as the sort of ‘accident’ that triggers an

airline’s liability under the Warsaw Convention”);

Scherer v. Pan American World Airways, Inc., 387

N.Y.S.2d 580, 581 (1976) (finding “no ‘accident’ as a

matter of law” where the plaintiff alleged “bodily injury

(namely, thrombophelitis), resulting from merely

‘sitting’ aboard a Pan Am flight from Tokyo to

California”). As a result, Plaintiff has failed to

demonstrate that an “accident” was the cause of his

injury as that term is used in the Warsaw Convention

and defined by the Supreme Court in Saks.

In addition, even if Plaintiff could prove that he

developed DVT from an unexpected or unusual event

or happening, his claim against United would still fail

because Plaintiff stipulated that he did not develop

15a

DVT on a United flight. (Stipulated Facts P38.)

Accordingly, Plaintiff cannot prove the United was the

cause of his injuries. See, e.g., McCaskey v. Continental

Airlines, Inc., 159 F.Supp.2d 562, 574 (S.D.Tex. 2001)

(holding that “[o]nce a passenger has proved that an

accident occurred aboard the aircraft or during the

operations of embarking or disembarking, the

passenger must also establish causation”).

IV. Conclusion

For the foregoing reasons, the Court GRANTS

Defendants’ Motion For Summary Judgment.

IT ISSO ORDERED

The Clerk shall serve a copy of this Minute Order on all

parties to this action.

Footnote(s)

0.1. Pursuant to the Court’s recommendation, Plaintiff

and United stipulated to certain facts for purposes of

United’s summary judgment motion. See Stipulation

Re Facts On Which Summary Judgment Is To Be

Determined (“Stipulated Facts”) attached as Exh. A

to Statement of Uncontroverted Facts And

Conclusions Of Law lodged by United on July 28, 2003.