Petition for Writ of Certiorari — Damon v. Air Pacific Pacific Ltd Ltd. (No. 06-803)

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IN THE + 08 OF THE CLERK

Supreme Court of the United States

JOHN DAMON, AN INDIVIDUAL, PETITIONER

AIR PACIFIC LTD. AND QANTAS AIRWAYS LIMITED.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CiRCUTIT

PETITION FOR WRIT OF CERTIORARI

CLAY ROBPINS IT] oa

Counsel! of Record

MAGANA, CATHCART

& MCCARTHY

101 Asenne of the Stars.

Suite 600

Los Angeles, CA 90067-5801

(310) 553-6630

Attorneys for Petitioner -

John Damon

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CURRY & TAYLOR @ WASH D.C. @ (292) 393-414) @ USSCINFO.COM

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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 8. Ct. 1221 (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.

ut

TABLE OF CONTENTS

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APPENDIX

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TABLE OF AUTHORITIES

Page

CASES

AIR FRANCE V. SAKS, 470 U.S. 392, 404 (1985).............:-2000 6, 16

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

I ciccansbiccibeiciiccecatintsthhtnecintubieledi dail bbccitiatetncale hh te ala 9

CAMAN V. CONTINENTAL AIRLINES, 455 F.3D 1087

CE UF te ienictasiaachictecaeeath eta aia einen ali ie acacia 4,14

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

PS gs Lie A. | SESE cem em mance s 11, 12, 13

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

ey ee NT aiiresietiserkiteiapncciccacinteiieemaettia etic ciidcscacaiaaaes 10

FULOP v. MALEV HUNGARIAN AIRLINES, 175

F BrP BOE GET yy aisokssstiscsetiinccctisnieininineeniicanitcniicans 12

GEIER V. AMERICAN HONDA MOTOR CO., 529 U.S.

SRE R E> PORTE OTH ER OLR NT ON ‘15

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

eG Ee UD ai itietsershsiotersntcchiianiepsnasccebecuiaiihiahiadingiindeaaasacaaats 11, 16

OLYMPIC AIRWAYS V. HUSAIN, 124 S.CT. 1221 (2004).......8, 17

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

} gt 8, | RRR ben MESSMO Ar MOR AIR an KARTS TREN oI 11

WALLACE V. KOREAN AIRLINES, 214 F.3D 293, 296-

pg a) SERRE Rem at eee Lae 11

STATUTES

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REGULATIONS

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1

OPINIONS BELOW

Petitioner seeks review of the opinion rendered

herein by the United States Court of Appeals for the

Ninth Cireuit which is unpublished is the Ninth Circuit

No. 0838-56838. A copy of the Memorandum is

reproduced in the Appendix as, (la-3a)'. The order of

the United States District Court for the Central

District of California is unreported. A copy of the

document is reproduced in the Appendix as, (4a-10a).

JURISDICTION

The decision of the United States Court of

Appeals for the Ninth Circuit was filed on October 2,

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 II, p. 3000, TS No. 876 (1934),

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

Convention or Act”)?

Article 17 or the Warsaw Act states:

‘Citations to the Appendix to the Petition as _a.

2The 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

28 September 1955, signed at Montreal on 25 September 1975,

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

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

2

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.

STATEMENT

During the course of Air Pacific Flight 811 that

departed at 10:00 p.m. on December 3, 2000 from Los

Angeles, California, bound for Nadi, Fiji, Appellant,

John Damon, developed extensive’ deep vein

thrombosis ("DVT"), resulting in pulmonary emboli.’

3Deep 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

3

Upon arrival at Nadi on December 5, 2000, Mr. Damon

felt chest pain and shortness of breath. Unbeknownst

to him, he was experiencing the effects of pulmonary

emboli caused by DVT he developed due to cabin

conditions on the Air Pacific flight. His condition

seemed to improve somewhat and later that day he

boarded a Qantas flight No. 921 bound for Brisbane,

Australia. Upon arrival at Brisbane, his condition

worsened, requiring hospitalization. He was

determined to have developed DVT during his flights

and suffered pulmonary emboli as a result.

At no time before December 3, 2000 had the

Petitioner ever heard of DVT being associated with

long duration air flight. Neither did he know prior to

his flight that his past medical history, coupled with the

conditions in the aircraft could cause this life

threatening medical condition. At no time prior to, or

during the flight did Respondents, Air Pacific or

Qantas, advise him, orally or visually, about the risk of

DVT created by long duration flight. At no time prior

to, or during the flight did the Respondent inform the

Petitioner of reasonable steps that he could have taken

to avoid the DVT risk. Therefore, not only was he

unaware of the risk, but, when it developed, he did not

have sufficient information to inform the carriers about

his medical situation.

_ 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).

4

Both ce ~“iers claim to have advised passengers

about the ris .\ey faced of developing DVT in flight.

They chose to hide what scant "information" they did

provide in the back of their in-flight magazines. It is

undisputed that passengers on the flights were not

advised to turn to the back of the airline magazines to

receive any information about DVT that could save

their lives. Indeed, the Air Pacific magazine does not

even mention DVT. By the time he boarded the Qantas

flight, Mr. Damon already developed the life-

threatening condition. Qantas, however, failed to give

Mr. Damon any information that could have clued him

to advise cabin personnel that he was in distress due to

a flight-related medical condition.

Long before these flights, air carriers generally,

and Qantas specifically, knew that international

travelers were especially at risk for developing DVT in

flight. Since 1954 reports in the medical literature have

linked air travel with DVT and pulmonary embolism.

Medical studies have found an increased incidence of

DVT among passengers who have recently flown,

perhaps in as many as 1 in 10. Conditions contributing

toward the increased susceptibility to DVT include:

immobility in flight; decreased air pressure; relative

hypoxia in the flight cabin and dehydration.

The danger of developing DVT during long

duration flights was also long known by the

International Air Transport Association ("IATA"),

which is the international commercial aviation

industry's trade organization of approximately 275

members, including the Respondent. In 1986, IATA

recommended that its members give warnings to

passengers specifically addressing the risk of DVT. A

manual distributed by IATA to its members mentioned

that "prolonged immobilization on long flights has a

5

noticeable effect on the circulation, especially in the

lower limbs." Because "the opportunity for physical

exercise is very limited," since aircraft "aisles will be

blocked most of the time by cabin personnel serving

passengers," IATA recommends that its members

encourage their passengers to "take every opportunity

to exercise" especially "during intermediate stops."

IATA's 1986 recommendations, however, went even

further: "During flight, passengers should be

encouraged to move their feet frequently and exercise

the muscles of the legs. when possible, to minimize

ankle and feet swelling, the passengers should stand

and walk the aisles for a few minutes every hour or so

and to elevate the feet as high as possible while sitting."

In 2001, IATA again instructed its member

carriers to inform travelers of the risks of DVT when a

reservation is booked. IATA also again encouraged

carriers to remind passengers - just before boarding

and while on board - to drink sufficient fluids, wear

loose-fitting clothes, avoid smoking and _ alcoholic

beverages, and perform physical exercises in their seats

(particularly for their feet and legs).

Although airlines have known that their

operations exposed their passengers to the DVT risk

for at least 30 years, some are just now beginning to

warn passengers of that danger. Indeed, Qantas has

claimed that it was not until 2001 that it began to

provide video warnings to its passengers about the

DVT risk. Unfortunately, prior to that time, for

whatever reason, Air Pacific and Qantas decided not to

provide any such informational video or other

announcement to passengers about the DVT risk.

Mr. Damon was not told by Air Pacific to read

page 72 in its on-board magazine. Even if he had, there

was nothing on that page that would have informed him

6

about DVT or that he was at risk. Even if Qantas had

told him to search back to page 163 of its magazine for

vital health information, which it didn't, there was no

information provided that would have alerted Mr.

Damon that he should advise cabin personnel that he

was suffering from a flight-related medical condition.

The carriers here claim that at the time of these flights

it was their policy to warn passengers of the DVT risk.

Since the purported warning was never actually given

to or received by Mr. Damon, the Respondents violated

their own alleged policies and as a result, the Petitioner

suffered a disabling, life-threatening medical event

during the course of these flights that continue to

cripple him. |

Petitioner brought suit in Federal District Court

seeking relief under Article 17 of the Warsaw Act. The

District Court entered judgment in favor of

Respondent, ruling as a matter of law that DVT could

not be construed an “accident” under Article 17. In

denying the Petitioner any relief for the serious,

permanent injuries he sustained due to Air Pacific's and

Qantas's operations, the District Court purports to rely

upon a definition of "accident" under Article 17, that it

believes was adopted by this Court in the 1985 opinion

of Air France v. Saks, 470 U.S. 392, 404 (1985).

Although left undefined in the Act as drafted in 1929,

this Court has consistently opined that the purpose and

intent underlying the Act required that a compensable

"accident" be an "unexpected or unusual event or

happening that is external to the passenger." This -

Court recognized that where international carriers'

failure to act in information in their possession causes

injury to a passenger, the Warsaw Act will afford relief.

The District Court erroneously analogized

Petitioner's disabling injury to that addressed in Saks,

7

because the flight took off, flew, and landed as planned.

Under this faulty paradigm, if a passenger suffers an

injury causally related to the carrier on a 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 requires that the passenger already know that by

taking the flight he or she is exposed to a potentially

fatal risk, and herein lies the whole point of the DVT

litigation domestically and internationally. Appellant

did not know he was at rick because Air Pacific and

Qantas decided not to tell him.

The record here is entirely distinguishable from

the facts in Saks. In Saks, the airline had no prior

knowledge or reason to suspect the particular,

undisclosed idiosyncratic needs of a single passenger.

Accordingly, it would not be considered objectively

"unusual" or "unexpected" if a carrier failed to act upon

information it neither had nor had reason to anticipate.

In this case, Air Pacific, Qantas and the rest of the

international air carrier industry knew of the hazard to

all their passengers but failed to meaningfully provide

information concerning that hazard to the passengers

on the flight.

The Ninth Circuit appellate panel failed to

provide any meaningful analysis of the present case.

The Panel merely adopted the holding in Caman v.

Continental Airlines, 455 F.3d 1087 (9th Cir. 2006).

The Panel discounted the Caman decision as not being

factually based, but rather instructive on the definitions

of the term “event" under Article 17. The Panel

declined to look at specific facts that would result in a

different conclusion in the Petitioner's case. The Ninth

8

Circuit, further, did not address the distinctions

between "omission" and "commission" it had made when

defining "event."

The facts here presented are analogous to those

reviewed in this Court's pronouncement in Olympic

Airways v. Husain, 124 §.Ct. 1221 (2004). There, an

individual crew member was made aware of a single

passenger's particular sensitivity. The issue there

concerned whether an omission (e.g. carriers’ failure to

respond to information) could satisfy the requirements

of an "unexpected" or "unusual" event or happening.

Here, an entire industry has ignored information in its

possession reflecting a risk it is exposing its passengers

to each day. Air Pacific and Qantas failed to

meaningfully implement any real response to that

information. A majority of this Court, in Husain, found

absolutely no distinction under Article 17 between

carrier acts and omissions, if passenger injury results. ©

The discussion in Husain addressed a record

that presumed the existence and breach of an "industry

standard and airline policy." Similarly, the record here

contains substantial evidence that a violation of

industry standard and the carriers' alleged policies to

warn was causally related to a passenger injury.

However, the same conclusion would result following

the Husain analysis, if Respondents and/or the carrier

industry had failed to develop or implement a

responsive standard or policy. Such a scenario must

logically be considered to be objectively "unexpected"

or "unusual" since the carrier industry had specific

information, but decided not to act. Certainly from the

innocent injured passenger's perspective, a carrier's

failure to take action to obviate a risk it was aware of,

whether due to violation of policy or intentional

decision not to develop a program, would be both

9

"unexpected" and highly “unusual." .

It is respectfully submitted that the Ninth

Circuit's ruling does not comply with either the purpose

or the intent of the Act, and contravenes this Court's

admonition concerning how the term "accident" used in

Article 17 should be construed. The decision allows

Respondents to escape responsibility notwithstanding

the fact that their operations and decisions were shown

to have had a causal connection to serious passenger

injury. The Ninth Circuit has turned its back on a fare-

paying passenger, who was severely injured because of

the Respondents’ operational decisions, and left Mr.

Damon without remedy. Such a ruling is at odds with a

reasonable and "flexible" application of the term

"accident' utilized in the Warsaw Act.

The -record provided substantial unrebutted

evidence establishing a connection between the

Petitioner’s injury and Respondent’s operation. The

Ninth Circuit failed to view the evidence in light most

favorable to the Petitioner, and could not weigh the

parties’ evidence. Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 245 (1986). The case 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 AIR CARRIERS'

FAILURE TO FOLLOW IATA'S STANDARD

AND AEROSPACE MEDICAL

ASSOCIATION'S RECOMMENDATIONS TO

MEANINGFULLY INFORM PASSENGERS

~ OF A SERIOUS HEALTH RISK

ASSOCIATED WITH CONDITIONS OF AIR

TRAVEL, A RISK KNOWN TO THE CARRIER

10

_-BUT NOT PASSENGERS, IS AN

UNEXPECTED OR UNUSUAL EVENT AS

DEFINED BY SAKS UNDER ARTICLE i7 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 that fly from or arrive in the United States. The

Ninth Circuit opinion undercuts the well-recognized

fundamental purpose of the Act, to encourage safe

flying environments on international flights, and to

provide international passengers with compensation

where a carrier’s operations led to 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 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

11

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—ef—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

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

12

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.” Jd. 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 eietion purpose of the

Act, and the public policy considerations it serves, form

an integral part of the analysis regarding the proper

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. The risks of aviation have changed

dramatically in ways unforeseeable in 1929 by the

Warsaw Convention delegates. Nonetheless, the

original drafters intended to create and created a

system of liability and compensation rules to cover all

13

hazards of air travel. Day v. Trans World Airlines,

supra, 528 F.2d at 38.

The Ninth Circuit Panel erroneously decided

that the DVT suffered by Damon did not result from an

"event." The Panel decided that Respondents' failure to

warn was not.an "event" as defined in Saks and Husain.

If a passenger falls victim to a medical condition on an

international flight, an "accident" will be found where a

crew member or the air carrier acted in an affirmative

way to cause the injury, or had stood by with

knowledge that the injury will occur. Olympic Airways

v. Husain, supra, 540 U.S. at 655. Strangely, the Panel

did not address whether the Respondents' failure to

follow the industry standard established by IATA and

the Aerospace Medical Association during an

international flight, that results in injury, is

"unexpected" or "unusual." The Petitioner, like many

other passengers, was unaware of DVT risk before

boarding the flights. Due to Air Pacific's and Qantas'

affirmative decision not to follow prevailing standards

and their own policies, Petitioner was precluded from

learning about the risk of DVT, and how to avoid it.

The Panel ignores the holding in Rodriguez,

which found significance in the absence of evidence in

that record concerning an industry standard requiring

that international passengers be given DVT warnings.

The record here is distinguishable from the facts in

Rodriguez. In the present case, the airlines not only

had prior knowledge that its flight conditions led to the

suffering of DVT by its passengers, but were directed

to issue warnings to international passengers of the

dangers of DVT prior to the flight by IATA and by the

Aerospace Medical Association. Moreover, the avowed

"policy" of the Respondents was to provide DVT risk

information to its passengers. Accordingly, in

14

Rodriguez, the court could not address whether it was

"unusual" or "unexpected" for a carrier to not issue a

warning to its passengers, when the industry standard

was to do so. The Ninth Circuit in Rodriguez was not

presented with evidence that the carrier failed to

comply "with industry practice at the time." Rodriguez

v. Ansett Australia, Ltd., supra, 383 F.3d at 919.

The Respondents knew of the risk of DVT that

all of its passengers faced. They claimed it was their

policy to inform passengers of the DVT risk associated

with conditions of long duration air travel. Yet, despite

having this information and being aware of the

directives, the airlines nonetheless, affirmatively and

unexpectedly declined to warn its fare paying

passengers about this risk by placing the information

where it can be easily found. Accordingly, the record

presented establishes that an affirmative failure, indeed

a refusal, to follow this standard was unusual among

other international air carriers, as the common practice

at the time was to issue DVT warnings to passengers

on international flights.

Further, the Respondents’ own decision to

provide passengers with DVT information reflects a

conscious decision by the airlines to implement a policy.

However, the airlines actual failure to effectively

deliver the DVT warnings to their target - the

passengers - shows a failure of the Respondents to

carry out their implemented policy. Thus, the

Respondents' failure to comply their own policy, is

inline with the Rodriguez holding that a finding of an

"accident" will result. Rodriguez v. Ansett Australia,

Ltd., supra, 383 F.3d at 919.

Determination of standards by silence was

rejected by the this Court. Olympic Airways v.

Husain, supra, 540 U.S. at 656. This Court used an

15

example of a passenger who collapsed and stopped

breathing, but his failing to advise the airline that he

needed help does not preclude the airline from refusing

to give aid, despite the fact that no such Federal

regulation exists. /d. If a danger to passenger's health

exists, and the air carrier, but not the passengers know

about it, the air carrier should disclose that danger in a

meaningful manner designed to get that information to

the passengers, especially when a standard exists

among the international air carrier industry to do so.

As previously examined by this Court, Federal

Aviation Regulations do not preempt the entire field of

aviation safety. Charas v. Transworld Airlines, Inc.,

supra, 160 F.3d at 1265. On the contrary, the FAA only

promulgates minimum standards. Thus, state

regulation also plays a role in air safety. See, Geier v.

American Honda Motor Co., 529 U.S. 861, 868 (2000).

By the same logic, should the international air carrier

industry decide to self regulate and impose stricter

standards than the mere minimum, it is free to do so.

Thus, [ATA's decision to mandate that DVT warnings

be given to international air passengers should be

enforced as a clear industry standard. A passenger

expects that an air carrier will follow safety directives

promulgated by the industry trade association, and

failure of Respondents to do so here was "unexpected"

and “unusual."

To find the standards of international air travel

it would be more appropriate to look at an international

organization's directive. IATA, as the trade

organization for international “air carriers, better

understands the realities of international air travel, and

as such is best capable of setting forth appropriate

warning to be given to international air passengers.

The court should look to the international air travel

16

standards to determine that a failure to follow the

standards was an "unexpected" or “unusual" departure,

and thus an Article 17 accident.

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 was contrary to industry guidelines

and resulted in a passenger suffering a serious bodily

injury.

II. THE RESPONDENT'S FAILURE TO FOLLOW

IATA'S DIRECTIVE AND THEIR OWN

IMPLEMENTED POLICIES OF WARNING ITS

PASSENGERS ABOUT THE DVT RISK

RESULTING FROM CONDITIONS ON BOARD AN

INTERNATIONAL FLIGHT IS A CONDITION

EXTERNAL TO THE CONTROL OF THE

PASSENGER, WAS AN "EVENT" THAT RESULTED

IN AN ARTICLE 17 "ACCIDENT."

This Court has interpreted "cause" to be

expansively construed, requiring only some link in the

injury producing "unusual" or "unexpected" event

external to the passenger. Saks, supra, 470 U.S. at 406;

‘Maxwell v. Aer Lingus, 122 F.Supp.2d 210, 211, n.2

(D.Mass. 2000).

The Petitioner was unaware of the risk of DVT

on the Respondents’ flights. As a result, he suffered

DVT. "All injury is the product of a chain of causes"

and the passenger need only prove "some link in the

chain was an unusual or unexpected event external to

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

406. The air carrier's awareness of dangerous flight

conditions and lack of response to them, not the

17

passenger's sensitivity to cabin conditions, are

determinative in a causation analysis. Olympic Airways

v. Husain, supra, 540 U.S. 644. ,

Here the carriers were unquestionably aware of

the risk it was exposing its passengers to. Air Pacific

and Qantas knew that the information they had was

vital in prevention of DVT in passengers. Air Pacific

and Qantas knew they should disseminate that

information to its passengers, as its own trade

association directed that DVT warnings be provided.

Instead, the Respondents took an easy way out and

placed a small warning in the back of an inflight —

magazine. By having an inconspicuous warning, the

Respondents ignored the directive, and as a result the

Petitioner suffered DVT.

The Panel creates a conflict between this Court's

holdings in Saks and Husain, the Ninth Circuit's own

decision in Rodriguez, and the Fifth Circuit's holding in

Blansett. The Ninth Circuit Panel cited its own

decision in Caman v. Continental Airlines, 455 F.3d

1087 (9th Cir. 2006), that attempted to carve out

unprecedented distinctions between terms "omission"

and "commission" while defining "accident." The Panel's

reliance in its opinion upon the Fifth Circuit decision in

Blansett and its opinion in Rodriguez, is improper in its

conclusion of what constitutes an "inaction," holding

that present case did not constitute an Article 17

"event." The Panel in the present case refers to an

event that qualifies for Article 17 compensation as

"commission", or an “inaction that produces an effect,

result or consequence."

Rodriguez, unlike Caman did not make a

distinction between different types of inactions, only

stating that if a standard to warn exists, then action on

the part of the air carrier is required. In Saks, the

18

airline did not fail to act in any way, as it had no

knowledge or notice of a single passenger's internal

reactions to flight conditions. Here, a standard to warn

existed, the carriers chose not to follow it meaningfully,

and injury resulted. This Court never addressed

whether a distinction should have been made, based on

a type of inaction. |

Even using the Ninth Circuit Panel's strange

and previously unheard of distinctions of different

definitions in Caman of "event," a "commission" by Air

Pacific and Qantas occurred. In the present case,

"commission" is not an individual crew member's

failure to act on information in order to avoid causing

injury to a passenger, but rather an airline-wide policy

of not providing important, injury-preventing, safety

information to its passengers, including those who may

be unknown to them, more at risk from DVT. Air

Pacific and Qantas did not merely "omit" to act to warn

its passengers of DVT risk. Instead, they acted by

_ placing a small warning hidden from the passengers, in

the back of the in-flight magazine. Thus, Air Pacific

and Qantas affirmatively failed to give a proper

warning. Unlike an "omission" where no conscious

decision to act occurred, here an _ affirmative

"commission" deprived Damon of the information he

. could have used to protect himself. The risk would

have been significantly decreased had Air Pacific and

Qantas simply instituted gave its passengers clear

information on where they can learn about DVT risk,

instead of hoping they stumble on it in the back pages

of the in-flight magazine. Instead, Air Pacific's and

Qantas's "commission" of failing to warn of DVT risk

resulted in Petitioner's injury. It's failure to take steps

to warn of that risk is no different, legally or

philosophically, from a crew's refusal to reseat a

19

sensitive passenger.

The carriers acknowledged that DVT

information should be provided to passengers. In fact,

both Qantas and Air Pacific developed and

implemented policies to provide the DVT risk

information to its passengers. However, they chose to

warn through ineffective media of an_ in-flight

magazine, rather than through effective media that had

been asked to employ, such as on-board oral warning.

Therefore, the policy implemented by both air carriers

was ineffective. The Respondents’ affirmatively acted

to implement a DVT warning program. However, the

Respondents did not effectively deliver those warnings.

The failure by the carriers to follow their own

implemented policy of delivering effective DVT risk

warnings to their passengers, constituted a

"commission" as defined in Caman. Therefore, the

failure -of the Respondents to effectively warn

constitutes an "event" for the purpose of finding an

Article 17 "accident."

Manifestly, the condition on which Caman's

holding was predicated, that the putative accident

concerned an act of "omission" is not present in the

instant case. The "accident" here is not merely a bare

failure to warn, but rather the intentional decision to

use ineffective media to deliver warnings. Particularly,

since carriers use effective media, such as the oral

warnings, to advise passengers of other important

information to protect their safety, Caman's logic could

stand for the proposition that a jury could find it

unusual or unexpected for the airlines to have warned

about DVT risks and prophylaxis through ineffective

media.

Air Pacific and Qantas do not dispute that it was

aware of how its operations were leading to DVT-

20

related injuries and deaths to a significant number of

international travelers annually. The Panel's opinion

analytically does not separate its decision from Caman,

where it called the failure to warn a mere "omission", or

"inaction that idly allows an unfolding series of event to

reach their natural conclusion." To call a failure to warn

of a life-threatening condition a mere "omission" is not

logical. A passenger does not board an international

flight, expecting a natural outcome of the flight to be

his development of DVT. Further Air Pacific and

Qantas did not merely idly stand by. They took

ineffective action to warn, while knowing that they

created conditions on its flight that lead to development

of DVT. To counterbalance the on-board cabin

environment, all the airline had to do was to provide an

adequate warning to its passengers, as prescribed by

IATA. A conclusion of a mere "omission" should not —

result when uncontroverted facts urge and demand

that positive steps be taken to remedy the danger of

DVT.

The carrier knew that passengers were at risk

for DVT, and they knew how to prevent DVT from

occurring in this case, just as the crew knew of the risk

to the passenger in Husain. The failure to act on that

information is unquestionably an important link in the

causal chain that resulted in the Petitioner developing a

life-threatening medical condition. Excluding the

circumstances here presented from the penumbra of

Article 17 will be entirely inconsistent with the overall

scheme of the Warsaw Convention.

The Panel failed to interpret the standard for an

international air carrier requiring to take affirmative

action, in Husain. Additionally, the Panel did not

properly address the definition of "omission" or

"inaction" as defined in Husain. The Panel did not

21

include in its opinion analysis of an industry standard,

required in Rodriguez to result in Article 17 liability.

The Panel also factually ignored in its opinion,

the Air Space Medical Association's publication of its

guidelines describing how carriers should address the

risks airline passengers. Lastly, the Panel made no

mention of the DVT risk warning standards

promulgated to its members, including Respondents, by

IATA.

Rehearing is necessary to assure these

important issues and facts are not overlooked. If

rehearing on these issues is denied, Petitioner

respectfuily urges rehearing be granted en banc so that

these important issues be properly addressed.

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 important

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 the Stars,

Suite 600

Los Angeles, CA 90067

(310) 553-6630

Attorneys for Petitioner

John Damon

la

No. 03-56838

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

JOHN DAMON, an individual, Plaintiff-Appellant,

v.

AIR PACIFIC LTD. and QANTAS AIRWAYS

LIMITED., Defendants - Appellee.

September 26, 2006, Submitted, Pasadena, California

October 2, 2006, Filed

COUNSEL: Clay Robbins III, Magafia, Cathcart &

McCarthy, Los Angeles, California, for the appellant.

Rod Margo, Scott Cunningham, Condon & Forsyth

LLP, Los Angeles, California, for the appellees.

JUDGES: Before: D.W. NELSON, HAWKINS, and

PAEZ, Circuit Judges

* This disposition is not appropriate for publication and

may not be cited to or by the courts of this circuit as

provided by Ninth Circuit Rule 36-3.

** This panel unanimously finds this case suitable for

decision without oral argument. See Fed. R. App. P.

34(a)(2).

2a

Plaintiff John Damon appeals the district court's

grant of summary judgment to defendants Air Pacific

Ltd. and Qantas Airlines Limited. We affirm.

Damon first argues that this court wrongly

decided Rodriguez v. Air New Zealand, 383 F.3d 914,

916-19 (9th Cir. 2004), which held that the development

of deep vein thrombosis ("DVT") was not an “aecident"

as that term is used in Article 17 of the Warsaw

Convention. Damon contends Rodriguez is inconsistent

with the Supreme Court's decision in Olympic Airways

v. Husain, 540 U.S. 644 (2004). In Rodriguez, however,

we fully considered and distinguished Husain, 383 F.3d

at 918, and, moreover, as a three-judge panel, we lack

the authority to disregard Rodriguez.

Damon next argues that the airlines should be

liable under the Warsaw Convention because their

failure to warn of the risk of DVT is an "accident," that

is, "an unexpected or unusual event." See Air France v.

Saks, 470 U.S. 392, 405-06 (1985). We recently rejected

this argument in Caman v. Continental Airlines, 455

F.3d 1087 (9th Cir. 2006). In Caman, we explained the

difference between the "accident" requirement of

Article 17 and the defenses available to a carrier under

Article 20(1) when a carrier has "taken all necessary

measures to avoid the damage":

Attributing liability to an air carrier for failing to do all

it can to prevent an injury that is inherent in air

travel...improperly shifts the focus of the inquiry from

the nature of the event which caused the injury to the

alleged failure of the air carrier to avert the same. In

addition, interpreting the term "accident" to include a

failure to warn of a possible risk of flight would

incorporate into Article 17 an inquiry that is properly

left to analysis under Article 20(1) once it has been

3a

established that an accident occurred.

455 F.3d at 1092. We went on to conclude that the

failure to warn of the DVT risk is not an Article 17

"event." Id.

Although Damon argues the factual record in his

case differs from the facts in Caman, nothing about the

holding in Caman_is tied to its specific evidence.

Rather, the decision turns o the interpretation of two

different provisions of the Warsaw Convention, and the

nature of the alleged act of omission. See id. Damon's

reliance on footnote four of Caman, 455 F.3d at 1091 n.4,

is thus misplaced. Although in Caman we declined to

address the general question of whether an air carrier's

departure form an industry standard or its own

company policy is “unexpected” for the purpose of

defining an Article 17 "accident," we _ specifically

concluded that a failure to warn of the risk of DVT is

not an "event" for Article 17 purposes. Id. at 1092. If no

"event" has occurred, it matters not whether that non-

event is "unusual or-unexpected.” Even though Caman

may leave open a question for another day in another

context, it definitely resolves the DVT failure to warn

issue, and in a way that is fatal to Damon's claim.

AFFIRMED.

4a

Case No. CV 02-5307-JF'W (Shx)

UNITED STATES DISTRICT COURT FOR THE

CENTRAL DISTRICT OF CALIFORNIA

JOHN DAMON -v- AIR PACIFIC, et al.

September 5, 2003, Decided

September 8, 2003, Entered

COUNSEL: For John Damon, Plaintiff: Clay Robbins

Ill, Magafia Cathcart & McCarthy, Los Angeles,

California

For Air Pacific Ltd. and Qantas Airlines Limited,

Defendant: Rod Margo, Scott Cunningham, 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, Defendant Air Pacific Ltd.

("Air Pacific") filed a Motion For Summary Judgment.

On August 4, 2003, Plaintiff John Damon filed his

opposition. On August 18, 2003, Defendants filed a

Reply. The Court found the matter appropriate for

5a

submission without oral argument.- See Local Rule 7-15

(the Court may dispense with oral argument on any

matter unless otherwise required); Fed.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 December 3, 2000, Plaintiff traveled from Los

Angeles, California to Nadi, Fiji aboard an Air Pacific |

flight (the "Air Pacifie Flight"). (UF 4 2.) On December

5, 2000, Plaintiff traveled from Nadi, Fiji to Brisbane,

Australia aboard a Qantas flight (the "Qantas Flight").

(Id.) Plaintiff planned on traveling to Australia in order

to spend the Christmas holiday with his family who was

residing in Queensland, Australia. (Id. at 5.) On the

Air Pacific Flight, Plaintiff was seated in the business

class section of the aircraft. (Id. at 46.) The flight lasted

approximately ten hours. (Exh. C tp MArgo Decl.)

Although there was turbulence during the Air Pacific

Flight, the aircraft and its component systems

functioned properly and there was nothing unusual

about the operation of the aircraft during the Air

Pacific Flight (Id. at {{ 9-12.) The Qantas Flight lasted

approximately three hours. (Id. at § 14.) There was no

business class section on the Qantas Flight, and

Plaintiff was seated near the front of the aircraft. (Id.)

Plaintiff presented no evidence that there was anything

unusual about the operation of the aircraft during the

Qantas Flight.

Although Plaintiff claims he developed pain in

his chest and back and shortness of breath while

6a

traveling from Los Angeles to Brisbane on the Air

Pacific and Qantas flights, he made no complaints of

physical pain to any Qantas or Air Pacific employees

upon arrival in Brisbane. (Id at J 15 & 17.) After

deplaning in Brisbane, Plaintiff went to a hospital

where it was determined that Plaintiff had deep vein

thrombosis ("DVT") and a pulmonary embolism. (Id. at

{ 16.) DVT is a condition in which a blood clot forms in

the deep veins of the legs. (Scurr Decl. 4 11; 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 {

19.) If the embolus reaches a blood vessel through

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

blockage is called an embolism. (Id.) Acknowledged

predisposition factors of DVT include long periods of

immobility, prior incidence of DVT, and dehydration.

(id at § 20.) Plaintiff had at least one prior incidence of

DVT and pulmonary embolism in May 1997, when

Plaintiff was residing in New Zealand. (Id. at 4 21 &

22.)

Both Qantas and Air Pacific provide all

passengers on all flights with in-flight magazines.

(Fantasha Decl. § 4; De Rome Decl. § 3.) The

December 2000 issue of Qantas’ in-flight magazine, "The

Australian Way," which was available to Plaintiff on his

flight to Nadi, provides as follows:

BLOOD CIRCULATION/MUSCLE RELAXATION

When you're sitting upright in a stationary position for

a long period of time, several things can happen:

- The central blood vessels in your legs can be

compressed, making is more difficult for the

blood to get back to your heart.

- The long inactivity of your body muscles in this

Ta

position can result in muscle tension, backaches,

or a feeling to excessive fatigue during, or even

after your flight.

- A stationary position inhibits the normal body

mechanism for returning fluid to the heart, and

_ gravity can cause the fluid to collect in your feet.

This results in swollen feet after a long flight.

: Some studies have concluded that prolonged

immobility may be a risk factor in the formation

of clots in the legs. Particular medications and

medical conditions may increase the risk of

formation of clots if associated with prolonged

immobility.

We recommend that you:

- Move your legs and feet for three to four

minutes per hour while seated and move about

the cabin occasionally. (Exh. A to De Rome

Decl.)

‘The December 2000 issue of Air Pacific's in-flight

magazine, "Islands," which was available to Plaintiff on

his flight to Brisbane, provides as follows:

Sitting in a stationary position for extended periods can

affect blood circulation, result in muscle tension,

backaches and a general feeling of fatigue. Cramped

seating positions can also result in fluid pooling in the

lower extremities which causes swollen feet after a long

flight. The best way to deal with these problems is to

do light exercises. For your convenience you will find a

range of suitable exercise pictures on these pages

which are designed to encourage a safe way to enjoy

movement, and stretch certain muscle groups that can

become stiff as a result of long periods of sitting. (Exh.

A to Fantasha Decl.)

8a

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,

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;

9a

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

A477 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 Air Pacific

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

against Qantas, 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.” /d. at

10a

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.

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.