RULING GROUNDS INJURY CLAIM THAT CHALLENGED UNITED'S USE OF CHEMICALS

July 20, 2004

Steven P. Garmisa
Hoey & Farina Attorney
garmisa@hoeyfarina.com
1-888-425-1212

Having decided he had jurisdiction to rule on the merits of a multibillion-dollar personal-injury class action against United Airlines, U.S. Bankruptcy Judge Eugene R. Wedoff zeroed in on the key question of whether there was an "accident" under the Warsaw Convention. In re UAL Corp., 2004 WL 1234093 (Bankr. N.D. Ill., June 2).

Monday's Trial Notebook looked at the jurisdictional issue.

According to the class-action complaint, the named plaintiffs, Richard and Sharon Dorazio, plus thousands of members of the proposed class, suffered personal injury from chemicals that United uses to kill any bugs on aircraft that fly between the United States and New Zealand and Australia. Exterminating insects is euphemistically referred to by the airline industry as "disinsection."
As Wedoff recounted, the lawsuit filed in Cook County Circuit Court alleged:

• "For many years, United has known that the insecticides used in this disinsection process have caused illness and injury to passengers, but United has chosen not to warn its passengers 'that flying in [United's] disinsected aircraft causes certain passengers to experience noticeable bothersome symptoms that may be irritating and sensitizing.'"
• "Specifically, United has been on notice that 'approximately 2 percent of people exposed to the compounds used in [United's] aircraft disinsection process will be irritated thereby.' "
• "In August 2000, the Dorazios flew in one of United's aircraft from Sydney, Australia, to Los Angeles, and Sharon Dorazio 'became very ill as a result of unauthorized exposure to pesticides used to disinsect the aircraft.' "

Turning to the merits of the claim -- and distinguishing two rulings that permitted claims involving deep vein thrombosis -- Wedoff concluded there was no "accident" as defined by the Warsaw Convention. Here are some highlights of his opinion (with various omissions not noted in the quoted text):

"The principal ground of the debtors' objection to the Dorazios' claim is that the claim is not based on an 'accident' under the Warsaw Convention. The Warsaw Convention is a treaty governing various aspects of international air transportation, to which the United States is a signatory. Under the supremacy clause, such treaties preempt conflicting local law. One of the major effects of the Warsaw Convention is a limitation of liability for air carriers.

"Whether the Dorazios assert an 'accident' under the Warsaw Convention is essential to the validity of their claim because of liability limiting provisions of the Convention. First, Article 17 of the Convention allows recovery for personal injuries only if they arise from an 'accident.' Air France v. Saks, 470 U.S. 392, 397 (1985); Olympic Airways v. Husain, 124 S.Ct. 1221, 1227 n. 8 (2004).

"Second, Article 24 of the Convention makes Article 17 liability the sole ground for personal-injury recovery, preempting local law that might allow recovery for injuries not caused by an 'accident.' Accordingly, unless the Dorazios' claim was caused by an 'accident' under Article 17, the claim is not enforceable.

"The Supreme Court has twice examined the meaning of 'accident' under Article 17. In Saks, 470 U.S. at 402, the court noted that the Warsaw Convention establishes one standard of liability for injury to persons (Article 17, requiring injury caused by an 'accident') and another for injury to goods and baggage (Article 18, requiring only injury caused by an 'occurrence').

"This difference led the court to determine that 'an accident must mean something different from an "occurrence" on the plane.'

"After reviewing a number of decisions from courts of other signatories to the Convention, the court concluded that 'accident' under Article 17 is 'an unexpected or unusual event or happening that is external to the passenger.'

"Thus, in Saks itself, where the claimant asserted an ear injury arising from ordinary changes in air pressure during flight, the court found that no recovery was possible: '[W]hen the injury indisputably results from the passenger's own internal reaction to the usual, normal and expected operation of the aircraft, it has not been caused by an accident, and Article 17 of the Warsaw Convention cannot apply.'

"The second decision, Olympic Airways v. Husain, 124 S.Ct. 1221 (2004), involved the failure of an airline flight attendant to move an asthmatic passenger to a seat farther from the smoking section of an aircraft. The principal question addressed by this decision was whether failure to act could constitute an accident, and under the circumstances of this case, the court held that it could: 'The distinction between action and inaction ... would perhaps be relevant were this a tort law negligence case. But [plaintiffs] do not advocate, and [the defendant airline] vigorously rejects, that a negligence regime applies under Article 17 of the Convention. The relevant "accident" inquiry under Saks is whether there is "an unexpected or unusual event or happening." The rejection of an explicit request for assistance would be an "event" or "happening" under the ordinary and usual definitions of these terms.'

"The District Court that heard the case found that the flight attendant's refusal to reseat the plaintiff was not expected or usual; the [9th U.S. Circuit Court of Appeals] agreed. The airline did not challenge the finding, and accordingly, the Supreme Court expressly declined to review it.

"Because the flight attendant's failure to act was 'an event' that could constitute an accident, and because that event was 'unexpected and unusual' -- 'the operative language under Saks and the correct Article 17 analysis' -- judgment in favor of the plaintiff was affirmed.

"Here, the event that the Dorazios assert to be an 'accident' is the disinsection of the aircraft in which they flew from Australia to the United States. They do not contend that this disinsection was unusual; to the contrary, the Dorazios allege that the disinsection of such flights was the normal practice of United -- and indeed, as noted above, it was United's legal obligation. Instead, the Dorazios argue that the disinsection was an accident because it was 'unexpected':

" '[W]hen [the Dorazios] and the other passengers they seek to represent sat in their seats, they had no reason to "expect" that it and other surfaces had been coated with toxic substances that they would absorb or inhale (and certainly no reason to expect that a flight attendant would spray some in the cabin while in flight.)

" 'Had the passengers been warned prior to boarding about the disinsecttion procedures and the toxicity of the chemicals used, then they could have expected to have inhaled or absorbed such chemicals, and no "accident" would have occurred; but in the absence of such warning, the movement of the chemicals from the seat or surfaces or aerosol can into their skin, nasal passages or lungs was as much of an unexpected, external event as the movement of the surrounding surface of the plane into their bodies in a crash would have been.'

"The question raised by this argument," Wedoff explained, "is whether an ordinary and usual aspect of air travel can constitute an 'accident' because a passenger, not having been warned about it, may not expect it to occur.

"The Supreme Court did not directly address this question in either Saks or Husain, but the court's treatment of 'accident' in those decisions, as well as the reasoning of other courts dealing with claims similar to the present one, indicates that the routine disinsection alleged by the Dorazios was not an 'accident' under Article 17 of the Warsaw Convention.

"In both Saks and Husain, the Supreme Court contrasted the 'unexpected or unusual event' that would be an Article 17 accident with the normal operation of an aircraft. Thus, in the course of giving 'considerable weight' to the 'opinions of our sister signatories,' Saks quoted a French court's observation that 'the term "accident" in Article 17 of the Warsaw Convention embraces causes of action that are fortuitous or unpredictable.'

"The decision continues: 'European legal scholars have generally construed the word "accident" in Article 17 to require that the passenger's injury be caused by a sudden or unexpected event other than the normal operation of the plane.'

"Similarly, Husain repeatedly emphasized the lower courts' findings that the flight attendant's failure to act was in 'blatant disregard of industry standards and airline policies' and that her behavior was unexpected and unusual 'in light of' these standards and policies.
"Indeed, there appear to be no reported decisions finding liability under Article 17 of the Warsaw Convention arising from the usual and ordinary operation of an aircraft. And while disinsection may raise a question of first impression in this regard, a large group of decisions dealing with a similar claim -- deep vein thrombosis (or DVT) -- has uniformly declined to find Article 17 accidents in the absence of an airline's deviation from ordinary operating standards.

"Like the Dorazios' claim here, the claims in the DVT decisions involved an asserted duty to warn. The plaintiffs alleged that they developed DVT (a potentially life-threatening formation of blood clots in major veins) due to prolonged air travel in cramped seating, and that they could have avoided this injury if they had received proper warnings. See Tory Weigand, 'Deep Venous Thrombosis and Airline Travel' in Conning the IADC Newsletters, 69 Def. Couns. J. 517, 523-30 (2002) (describing the medical condition and litigation theories).

"In major test cases in the United Kingdom and Australia, the courts have held that a failure by airlines to warn of a danger of DVT could not constitute an Article 17 accident. See Deep Vein Thrombosis and Air Travel Group Litigation, [2003] EWCA Civ. 1005, 2003 WL 21353471, *650 (July 3, 2003); Qantas Ltd. v. Povey, [2003] VSCA 227, 17, 2003 WL 23000692, 17 (Dec. 23, 2003). An unreported decision of the Ontario Court of Justice, McDonald v. Korean Air (Sept. 18, 2002), reached the same result.

"In this country, two reported decisions agree that developing DVT in a flight conducted in accord with ordinary airline standards is not an accident. Rodriguez v. Ansett Australia Ltd., 2002 WL 32153953 (C.D. Calif. 2002); Louie v. British Airways, Ltd., 2003 WL 22769110 at *10 (D. Alaska 2003) (finding the British court's reasoning on the issue to be persuasive).

"Two other decisions of U.S. courts have permitted adjudication of claims for failure to warn of DVT on long flights -- but only because the plaintiffs alleged that it was industry practice to give such warnings during flight. Miller v. Continental Airlines Inc., 2003 WL 21557678 at *3, *5 (N.D. Calif. 2003) (distinguishing foreign decisions because they assumed 'that it is not customary procedure to inform passengers of the risk of DVT' and because plaintiffs alleged that it is 'customary procedure ... to "warn passengers of the risks [of contracting DVT during lengthy flights] and to warn or advise of the simple steps the passengers could take to minimize those [DVT] risks" '); Blansett v. Continental Airlines, 246 F.Supp.2d 596, 602 (S.D. Texas 2002) (holding a jury could find that 'failure to warn passengers ... of the risk of DVT was an unexpected and unreasonable deviation from routine industry procedure, and thus, an accident under the Warsaw Convention').

"In sum, the only decisions to find an 'accident' based on a duty to warn about DVT involve allegations that the failure violated industry standards for conducting a flight.

"The Dorazios' claim alleges no failure by United to comply with industry standards at any time, and the failure to warn of disinsection that is involved in the Dorazios' claim did not occur during the flight itself. Rather, the Dorazios assert that United should have warned them -- before the flight took place -- of a normal procedure involved in the flight, so that they could have chosen not to fly.

"In this way, the Dorazios have gone far beyond the understanding of 'accident' set out in Saks and Husain -- asserting an injury caused by the ordinary, required operations of a flight because they had not been advised of those operations.

"This is not an 'accident' under the Warsaw Convention, and because the Convention precludes any alternative recovery under local law, the Dorazios' claim must be disallowed."

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