Ninth Circuit again rejects passengers’ deep vein thrombosis arguments

August 4, 2008

Twardowski v. American Airlines, Inc. (9th Cir. (Cal.) July 30, 2008).  The passengers in these consolidated appeals alleged that they had suffered injuries from deep vein thrombosis (“DVT”) they had developed during flights for which they had bought tickets between 2001 and 2004.  They alleged that the airlines were liable for such injuries because the airlines had not warned the passengers of the risk of developing DVT, despite public statements that the International Air Transport Association (“IATA”), airline medical officers, and even the august English House of Lords, had made, before the flights at issue, suggesting that the airlines issue such warnings.

Before the trial court, the airlines had successfully moved for summary judgment under Article 17 of the Warsaw Convention, which applied to the flights at issue and thus provided the passengers’ exclusive remedy against the airlines.  Article 17 of the Convention governs an airline’s liability for a passenger’s death or bodily injury; it provides as follows:  “The carrier is liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident 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.”  The U.S. Supreme Court has defined an “accident” under Article 17 as “an unexpected or unusual event or happening that is external to the passenger,” not “the passenger’s own internal reaction to the usual, normal, and expected operation of the aircraft.”

In separate prior decisions, the Ninth Circuit had held that developing DVT during a flight is not an “accident” within the meaning of Article 17, and that an airline’s failure to warn about the risk of DVT is not an “event” within the meaning of the foregoing Supreme Court definition of an “accident.”  In Twardowski, the passengers – reaching for what was almost certainly the last arrow in the DVT quiver – argued that the airlines’ failure to comply with the suggestions by IATA and others to warn passengers about DVT was an unexpected “event” and, thus, an “accident” within the meaning of Article 17.

The Ninth Circuit rejected the passengers’ arguments.  It reasoned that an airline’s failure to warn a passenger about DVT does not become an unexpected “event,” and thus an Article 17 “accident,” just because various groups and individuals have publicly suggested that the airline give such warnings.  The court drew a distinction between the general suggestions made to the airlines in this case and the specific requests for health-related assistance made by passengers to airlines in certain other cases in which the courts held that the airlines’ failure to comply with those requests constituted an unexpected “event.”


Airline not liable for failure to warn in DVT case

January 26, 2007

James v. Delta Air Lines, Inc. (9th Cir. (Cal.) Jan. 22, 2007).  The Ninth Circuit held that the airline’s failure to warn the passenger of the risk of developing deep vein thrombosis was not an “accident” under Article 17 of the Warsaw Convention.  As a result, the court affirmed the district court’s summary judgment for the airline on the passenger’s failure to warn claim.

If a passenger’s travel was subject to the Warsaw or Montreal Convention but the passenger cannot proceed under the applicable Convention because he did not suffer an “accident” resulting in “bodily injury,” the passenger cannot proceed at all against the airline.


Airlines not liable for passengers’ DVT

October 21, 2006

Cortez v. Air New Zealand Ltd. (9th Cir. (Cal.) Oct. 2, 2006) & Damon v. Air Pacific Ltd. (9th Cir. (Cal.) Oct. 2, 2006).  In virtually identical opinions, the Ninth Circuit held that neither the passengers’ development of deep vein thrombosis (“DVT”) nor the airlines’ failure to warn the passengers of the risk of DVT constitutes an “accident” as that term is used in Article 17 of the Warsaw Convention.  Since no “accident” had occurred, the airlines were not liable for the passengers’ DVT injuries.


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