“DVT” Makes First U.S. Inroads
In a disturbing decision, the U.S. District Court for the Southern District of Texas recently ruled that although Deep Vein Thrombosis (“DVT”) was not an “accident” within the meaning of the Warsaw Convention, failure to warn of the risks of DVT on “long-haul” flights could be an accident.

The plaintiff, thirty-six year-old Michael “Shawn” Blansett alleged that he suffered DVT while he was a passenger on board Continental’s long haul flight from Houston, Texas to London.  He suffered a cerebral stroke and debilitating injuries; he is confined to a wheelchair.

The Warsaw Convention provided the “exclusive basis” for plaintiff’s cause of action, under which plaintiff had to prove that “an accident took place on board the aircraft.”  An accident is “an unusual or unexpected event or happening that is external to the passenger.” See Air France v. Saks, 470 U.S. 392 (1985) (emphasis added).

Continental argued that sitting in an airplane during a normal flight (which can cause DVT) cannot be an accident. The court accepted this argument and stated that “injuries sustained merely from sitting during a normal flight is not an accident, [t]hus, injuries sustained merely from sitting during a normal flight are not compensable under the Warsaw Convention.”

The plaintiffs alleged that Continental violated a “custom, rule and/or procedure among international long-haul carriers [by failing] to warn, advise and/or take adequate precautions to inform passengers of the risk of DVT.” The court noted that “many courts have recognized that failing to carry out routine procedures in the usual way can constitute an accident.” Continental’s motion to dismiss the claim for failure to state a claim upon which relief could be granted was denied. Plaintiff will be allowed to proceed to trial on the theory that the failure to warn of the risks of DVT was an “accident”.   Blansett v. Continental Airlines, Inc., 29 Av. Cas. (CCH) 17, 340 (S.D. Tex. 2002)

Commentary.  This decision is an anomaly and poorly reasoned.  It cites no authority for the novel proposition that failing to warn of an event that would not itself be an accident can constitute an accident.  There is no immediate right of appeal from this decision, and no further ruling on this decision is likely until after trial.

Legal Action Challenges 9-11 Relief
Seven families of deceased victims of the 11 September terrorist attacks have initiated a “class action” lawsuit, claiming that the regulations and standards applied by the Justice Department and Special Master Kenneth Feinberg, violate the legislative mandate of The Air Transportation Safety and System Stabilization Act (“ATSASSA”). The declaratory judgment action was filed on 24 January 2003 in the U.S District Court for the Southern District of New York.

The lawsuit, for which class certification is sought, alleges four areas in which the regulations and practices of the Special Master violate his legislative mandate:

1.    Basing lost earnings calculations on after-tax earnings;
2.    Determining lost earnings for single individuals utilizing “an arbitrary and unreasonable consumption rate”;
3.    Disregarding 2001 earnings in calculating lost earnings and disregarding other components of earnings; and
4.    “Capping” recoveries and failing to provide guidelines for individuals above the 98th percentile of wage earners.

Although an exhaustive review of the thirty-page complaint is beyond the scope of this newsletter, in this author’s opinion, plaintiffs face an uphill battle on all fronts.

Count One seems to be the strongest of the four.  The definition of “economic loss” specifically refers to “applicable state law,” and while applicable law may vary for given decedents, the New York rule, as established by Johnson v. Manhattan & Bronx Surf. Trans, Auth., 71 N.Y.2D 198, 519 N.E.2D 326, 524 N.Y.S.2D 415 (1988), clearly provides for the calculation of wrongful death economic loss by reference to gross income.  However, the Special Master is also charged with determining “the extent of the harm to the claimant, including any economic and noneconomic losses and . . . the amount of compensation to which the claimant is entitled based on the harm to the claimant.”  ATSASSA § 405.  Determining that an individual has not been “harmed” to the extent of income that would otherwise be lost to taxes may be within Special Master’s role of determining the extent of “harm” to the claimant.

Items two and three, dealing with consumption rate and wage calculations seem too technical to constitute a basis for violating a broad legislative mandate.  In general, arguments as to methodologies and “number crunching” seem tenuous at best.

Finally, the fourth count, the imposition of a “cap” on recoveries – really the heart of the matter – seems to have been too carefully avoided by the terminology of the Special Master.  Referring to “presumed recoveries” and “extraordinary circumstances,” the Special Master has been adamant that there are no caps, but rather guidelines and presumptions.  It is impossible to forecast whether the current awards (see below) indicate a de facto cap as alleged by plaintiffs.

The first “test” of this claim will be procedural.  Will the class be “certified” by the district court?  More to follow.
Warsaw Removals “Buttoned-Up” by SDNY
The rule of law in the United States for injures and deaths in the course of “international transportation by air” is that the Warsaw Convention provides plaintiffs’ exclusive cause of action.  As a treaty of the United States, federal courts have “Subject Matter Jurisdiction” over cases involving the Convention regardless of the amount in controversy.  A favorite tool of defense counsel is removing cases filed in state court to federal court whenever possible - the theory being that it puts some needed pressure on plaintiff’s counsel to do some work on the case (Heaven forbid!) or settle early.

However, in many instances, plaintiffs could avoid this fate by avoiding any reference to the Warsaw Convention in his/her complaint – even if international destinations are referenced.  This evasive pleading practice was facilitated by the antiquated “Well Pleaded Complaint Rule.”   In two cases relating to the loss of American Airlines Flight 587, the U.S. District Court for the Southern District of New York ruled that plaintiffs may not evade federal jurisdiction by “artful” pleading.  Thus, at least in the Southern District of New York, which embraces Manhattan and the Bronx, cases filed in state court involving Warsaw travel may be securely removed to federal court.  In light of the established preemptive nature of the Warsaw Convention, we hope this trend will continue in other jurisdictions.  DeGeorge v. American Airlines, 2002 WL 3135626 (S.D.N.Y. 2002) and In re Air Crash at Belle Harbor, slip. op., (S.D.N.Y. January 29, 2003).

Latest 9-11 Compensation Statistics:
The following are the latest “presumed awards” ranges for “substantially completed” wrongful death claims under the Victims Compensation Fund:

Income Level    Range    Number of Claims in Range
Up to $20,000    $389,900-$475,000    2
$20,001 to $40,000    $250,000-$1.43 Million    18
$40,001 to $60,000    $250,000-$2.06 Million    29
$60,001 to $80,000    $250,000-$1.97 Million    21
$80,001 to $100,000    $250,000-$4.1 Million    20
$100,001 to $120,000    $250,000-$3.9 Million    20
$120,001 to $140,000    $1.2 to 3.6 Million    10
$140,001 to $160,000    $1.26 to $3.05 Million    6
$160,001 to $180,000    $1.5 to $3.9 Million    7
$180,001 to $200,000    $1.9 to 3.6 Million    6
$200,001 to $220,000    $1.7 to 5 Million    3
Over $220,001    $750,000 to $5.7 Million    13

Short on detail, information on actual income, dependents etc. would be helpful.  Of the awards for which more detailed information is provided on a separate “Claims Summaries” page, the highest award broken down is $3.48 Million for a “married project manager with one dependent and a base salary of $231,000 . . after $939,680 in collateral offsets.”

And on a Personal Note!  On 1 March 2003, Alimonti Law Offices will celebrate its second anniversary.  Thank you for your support!
For additional information contact:
Alimonti Law Offices
Tel. (001) (914) 948-8044