Deep Vein Thrombosis: U.S. Courts Line Up With High Courts in the U.K. and Australia
 
October 13, 2006
 
Charles L. Coleman- San Francisco

Claims Dismissed Under the Warsaw Convention for “Failure to Warn” of the Risk

On August 21, 2006, Chief Judge Vaughn Walker of the U.S. District Court for the Northern District of California issued an order in In Re Deep Vein Thrombosis Litigation, No. MDL 04-1606 VRW, 2006 WL 2547459 (N.D. Cal. Aug. 21, 2006), granting the airline defendants’ motions for summary judgment in 37 separate actions on the ground that the passenger plaintiffs could not establish that the airlines’ alleged “failure to warn” of deep vein thrombosis (DVT)¹ could qualify as an “accident” within the meaning of Article 17 of the Warsaw Convention. Since these multidistrict proceedings include all pending “failure to warn of DVT” claims in the United States, Judge Walker’s order effectively ends litigation of DVT “failure to warn” claims at the trial court level in the United States.

Judge Walker’s ruling was issued shortly after the Ninth Circuit Court of Appeals issued its August 2, 2006, ruling in Caman v. Continental Airlines, 455 F.3d 1087 (9th Cir. 2006). In Caman, the Ninth Circuit held that the airline’s alleged failure to warn of the risk of DVT was not an “accident” under Article 17 of the Warsaw Convention because, regardless of whether the failure to warn was or was not “unexpected,” it was still not an “event.” As a result of the Caman ruling, the plaintiffs’ chances of overturning Judge Walker’s decision through an appeal to the Ninth Circuit appear to be slim. This is confirmed by the Ninth Circuit’s unpublished rulings issued on October 2, 2006 in the two companion cases of Damon v. Air Pacific Ltd., 2006 WL 2817997 (9th Cir. No. 03-56838) (October 2, 2006) and Cortez v. Air New Zealand Limited (USA), 2006 WL 2817981 (9th Cir. No. 03-56839) (October 2, 2006), in which the panel commented that “nothing about the holding in Caman is tied to its specific evidence.”

Plaintiffs’ “Failure To Warn” Theory

In recent years, aviation plaintiffs’ lawyers have sought to establish a medical foundation and legal theory under which passengers who contract deep vein thrombosis during or after a long flight can hold air carriers legally responsible for their injuries. The plaintiffs developed a legal theory that the air carriers’ alleged failure to give adequate warnings about the risks of contracting DVT constituted a compensable “accident” within the meaning of Article 17 of the Warsaw Convention² , i.e., “an unexpected or unusual event or happening that is external to the passenger.”³

In support of their theory, plaintiffs relied on the U.S. Supreme Court’s recent decision in Husain v. Olympic Airways, 540 U.S. 644 (2004), which arguably supported the proposition that, “an airline’s mere inaction can constitute an ‘accident’ within the meaning of the Warsaw Convention.”⁴ The plaintiffs argued that if the “mere inaction” of Olympic Airways in the Husain case, in failing to act on a passenger’s request to move away from the smoking section, could be an “accident”, then so could the air carriers’ “mere inaction” in failing to provide adequate warnings of DVT. Further, the plaintiffs argued, as Justice Scalia did in his dissent,⁵ that the U.S. Supreme Court’s Husain decision effectively rejected the reasoning of two intermediate court opinions from the U.K.⁶ and Australia⁷ finding that failure to warn of DVT was not an “accident” under the Warsaw Convention because there was no unusual or unexpected event or occurrence.

Dozens of DVT Cases Are Filed and Then Consolidated in MDL 04-1606 VRW

The first DVT case filed before Judge Walker was Miller v. Continental Airlines, No. 02-1693 (N.D. Cal.). Thereafter, numerous other cases were filed by other passengers against a wide variety of domestic and foreign air carriers in cases before Judge Walker and elsewhere in numerous jurisdictions around the country. On June 25, 2004, the Judicial Panel on Multidistrict Litigation granted an application to centralize all pending DVT “failure to warn” cases before a single court for the purpose of pretrial proceedings on the ground that the cases involved “complex core questions concerning whether various aspects of air travel cause, or contribute to, the development of deep vein thrombosis in airline passengers.” The centralized multidistrict litigation (MDL) proceedings were then assigned to Judge Walker.

The “Failure To Warn” Theory Unravels

While the Supreme Court’s Husain decision (particularly Justice Scalia’s characterization of that decision, with which the Court’s majority did not agree) seemed at first blush to support the plaintiffs’ claim that the air carriers’ alleged “failure to warn” of DVT could constitute an “accident” under Article 17 of the Warsaw Convention, recent lower court decisions have clearly rejected the plaintiffs’ “failure to warn of DVT” theory.

The High Court of Australia Rejects “Failure To Warn” (June 23, 2005)

One of the reasons for the U.S. Supreme Court majority’s refusal in Husain to give more credence to the reasoning of the intermediate appellate courts in Australia and the U.K. when it issued its opinion in February 2004, was that “the respective courts of last resort – the House of Lords and the High Court of Australia – have yet to speak.” Since that time, the highest courts of Australia and the U.K., applying the same language from Article 17 of the Warsaw Convention, have had the opportunity to harmonize Husain with their rulings.

On June 23, 2005, the High Court of Australia issued its detailed and final order in Povey v. Qantas Airways Limited, [2005] HCA 33. In his concurring judgment, Justice Kirby of the Australian High Court noted that “[m]uch of the appellant’s argument in this Court was based on a decision of the Supreme Court of the United States since Saks, namely Olympic Airways v. Husain.” Justice Kirby proceeded to explain why the majority’s decision in Husain is distinguishable from the situation presented in the “failure to warn of DVT” cases. In Husain, Justice Kirby explained, “the flight attendant’s refusal to assist on three separate occasions was also a ‘factual event’” so that, in the words of the majority in Husain, the “rejection of an explicit request for assistance would be an ‘event’ or ‘happening’ under the ordinary and usual definitions of these terms.”

Justice Kirby also eloquently summarized the current status of the DVT “failure to warn” theory:

Since ancient times, human beings have known of the dangers of flight. The mythologies of Greece, Crete, Persia and other lands include stories of injurious attempts by men and women to soar into the firmament. In his Metamorphoses, Ovid describes the winged flight of Daedalus and Icarus, brought to an end by the youth’s reckless attempt to soar too high. The appellant in this case likewise complains of an injury caused by his air travel. However, whereas Icarus had only his father Daedalus to assist him in his peril, the appellant has the Warsaw Convention. To that Convention he has appealed. But . . . it is of no greater avail.⁸

The Fifth Circuit Rejects “Failure To Warn” Claims Under the Warsaw Convention – The Blansett Decision (July 21, 2004)

A few weeks after the Povey decision was rendered, the U.S. Court of Appeals for the Fifth Circuit issued its decision in Blansett v. Continental Airlines, Inc., 379 F.3d 177 (5th Cir. 2004). Like Povey, Blansett involved an international air passenger’s claim that he had been injured by an “accident” (within the meaning of Article 17 of the Warsaw Convention) because he developed DVT after the air carrier’s “failure to warn” him of the risk of DVT.

In rejecting the plaintiff’s claim, the court in Blansett distinguished Husain by pointing out that in Husain, “unusual circumstances existed to elevate the willing inaction of airline personnel from mere inertia – from a non-event – to an event both ‘unexpected and unusual.’” Thus, it appears that the Blansett court concluded that there was no “accident” both because: (1) there was no “event”; and (2) there was nothing “unexpected or unusual” that occurred. In support of the latter conclusion, the Blansett court mentioned its decision in Witty v. Delta Air Lines, Inc., 366 F.3d 380 (5th Cir. 2004) rejecting “failure to warn of DVT” claims on domestic flights.⁹ The Blansett court noted that, although Witty did not decide the issue presented in Blansett (because Witty did not arise under the Warsaw Convention), “it is nonetheless instructive. It was not an unexpected or unusual decision for Continental merely to cleave to the exclusive list of warnings required of it by the agency that has regulatory jurisdiction over its flights.” The same argument, of course, could be made not only by other U.S.-flag air carriers but also by their foreign counterparts whose aviation regulatory authorities similarly do not require that DVT warnings be given.

“Failure To Warn” Claims in Domestic U.S. Cases Found Preeempted by FAA Regulations – The Witty Decision Is Accepted in the Multidistrict DVT Cases (March 11, 2005)

Based on the Witty decision and the importance of trying to avoid or limit broad “negligence-based” discovery in the MDL proceedings before Judge Walker, the defendants presented to Judge Walker a motion to dismiss the failure to warn claims as to “Non-Warsaw Defendants” (i.e., U.S.-flag air carriers with domestic passenger plaintiffs not suing under the Warsaw Convention). The motions were brought in late 2004 and argued on January 13, 2005. Judge Walker granted the motions and dismissed the “failure to warn” claims against “Non-Warsaw Defendants.” In re Deep Vein Thrombosis Litigation, 2005 WL 591241 (N.D. Cal. Mar. 11, 2005).

The granting of the motion to dismiss based on the Witty decision and related FAA preemption, uniformity and other arguments left the plaintiffs to argue that the remaining “Warsaw Defendants” (which included many of the same air carriers and potentially the same flights)¹⁰ should nevertheless be subject to liability under the Warsaw Convention because the failure to give DVT warnings was “unusual or unexpected.” The Warsaw Convention plaintiffs proceeded to make this argument, resting their case in large measure upon their interpretation of Husain.

After dismissing the “Non-Warsaw Defendants” based on the FAA preemption rationale of the Witty case, Judge Walker allowed the plaintiffs in the remaining (Warsaw) cases to conduct discovery designed to determine whether (at the various times relevant to the dozens of claims in the MDL proceedings) there was an established aviation industry standard or practice of providing warnings of the risk of DVT. This discovery was allowed in order to give plaintiffs an opportunity to argue (allegedly based on Husain) that there was an “accident” if a carrier did not give DVT warnings in contravention of an established aviation industry standard or practice. Discovery was provided, although predictably the parties did not agree about the meaning of the results.¹¹

After the discovery was conducted, the “Non-Warsaw Defendants” filed motions for summary judgment seeking dismissal on the basis of arguments similar to those accepted by the Fifth Circuit in the Blansett case. The plaintiffs filed an opposition arguing that there was an accepted industry standard or practice of giving DVT warnings, that the Warsaw Defendants violated this standard by not giving adequate DVT warnings, and that this was sufficient (under Husain) to trigger Article 17 liability.

The U.K. House of Lords Rejects “Failure To Warn” (December 8, 2005)

In London, the same day on which oral argument on the summary judgment motions in the U.S. multidistrict litigation proceedings before Judge Walker was to occur in San Francisco, the House of Lords handed down its long-awaited decision in Deep Vein Thrombosis and Air Travel Group Litigation [2005] UKHL 72. The decision unanimously affirmed the U.K. Court of Appeals’ decision finding that failure to warn of DVT is not an “accident” under Article 17 of the Warsaw Convention. The U.K. House of Lords decision distinguished and harmonized Husain in much the same way that the Povey decision did, with particular reference by some of the Law Lords to Justice Kirby’s concurring opinion in Povey.

By the time Judge Walker took the bench in San Francisco, the House of Lords’ decision had already been conveyed to him by the airline defendants and he went so far as to read into the record excerpts of the House of Lords’ decision pointing out that:

where an airline and the crew of its aircraft have acted in accordance with usual and expected practice current at the relevant time, it is at least questionable whether a failure to act in some other way could, without artificiality, be regarded as an accident on board or in the course of embarking or disembarking. The realistic target of criticism would seem to be not the crew, but senior officers of the airline, in the airline’s office responsible for safety, for failing to identify the risk of DVT and to introduce further precautions, changes or warnings in relation to flights on its airplanes.¹²

On the other hand, the plaintiffs before Judge Walker could seek to distinguish their case from the House of Lords’ decision based on the factual record. The House of Lords’ decision noted that: “The failure by an airline to warn its passengers of the danger of DVT and of the precautions that might be taken to guard against that danger does not ... improve the case, at least where there is no established practice of airlines generally or of a defendant airline in particular to issue such warnings. How the case would look if there were such an established practice and if by an oversight the usual warnings were not given does not arise from consideration of the present case.”¹³

At the conclusion of the oral argument in San Francisco in which the House of Lords’ decision was discussed, the MDL summary judgment motions were submitted for decision by Judge Walker. As months passed after the oral argument was concluded without a decision from Judge Walker, the reason for the court’s delay in issuing a decision was not apparent. The reason, however, may well have been that Judge Walker was waiting for the Ninth Circuit to rule in the Caman case discussed below.

The Ninth Circuit Rejects “Failure To Warn” Claims Under the Warsaw Convention – The Caman Decision (August 2, 2006)

On August 2, 2006, the U.S. Court of Appeals for the Ninth Circuit (whose territory includes the Northern District of California where the MDL proceedings were pending before Judge Walker) issued its decision in Caman v. Continental Airlines, 455 F.3d 1087 (9th Cir. 2006). Caman involved a claim by an international air passenger (who was subject to Warsaw Convention) that he had developed DVT because of the airline’s failure to warn him of DVT. The Ninth Circuit began by observing that “[i]t is well settled that the development of DVT as the result of international travel, without more, does not constitute an ‘accident’ for the purposes of Article 17 liability.” The court then addressed the question whether a “failure to warn” of the risk of DVT could constitute an accident and concluded that it could not.

The Ninth Circuit noted that the plaintiff in the Blansett case before the Fifth Circuit “sought relief on the identical theory presented here. Namely, Blansett argued that the airline’s failure to warn him of the potential for DVT is an Article 17 ‘accident’ because the decision not to warn passengers of a known risk is a departure from industry standard and is, therefore, unexpected.” In rejecting the plaintiff’s claim, the Ninth Circuit distinguished the DVT “failure to warn” case before it from Husain in the following terms:

Specifically, we hold that Continental’s failure to warn Caman of DVT is not an “event” as that term is discussed in Saks and Husain. Rather, Continental’s failure to warn was an act of omission (inaction that idly allows an unfolding series of events to reach their natural conclusion) as opposed to an act of commission (inaction that produces an effect, result or consequence) as in Husain’s rejection of a direct plea for help.

In essence, the Ninth Circuit responded to the Supreme Court’s Husain decision (in which the majority opinion rejected as a “fallacy” the distinction between “action” and “inaction” for the purpose of determining whether there was an “accident”) by providing a nominally different distinction – between “omission” and “commission.” This distinction finds some support in Husain, where the Supreme Court majority found that “[t]he rejection of an explicit request for assistance would be an ‘event’ or ‘happening’ under the ordinary and usual definition of these terms.” While the High Court of Australia and the House of Lords may have been no more impressed by the Supreme Court majority’s reasoning in Husain than the Supreme Court majority was with the “precise reasoning” of the intermediate appellate courts of Australia and the U.K.,¹⁴ it is increasingly clear that the results reached by the courts would be the same, even if the reasoning and terminology differ slightly.

Chief Judge Walker Dismisses 37 “Failure To Warn” Cases in the Deep Vein Thrombosis Litigation (August 18, 2006)

Within days of the Ninth Circuit’s issuance of the Caman decision, Judge Walker invited the parties to the MDL proceedings before him to submit supplemental briefs addressing the significance of the decision for the cases before him. The briefs were submitted on August 16, 2006, and Judge Walker issued his ruling granting the summary judgment motions to the “Warsaw Defendants” in the “failure to warn” DVT cases on August 21, 2006.¹⁵

Judge Walker’s decision joined with the Blansett and Caman decisions in seeking to smooth over the international rift created by the Supreme Court’s comments in Husain about the Povey and Deep Vein Thrombosis and Air Travel Group Litigation. Judge Walker candidly acknowledged that “[f]or the purposes of this litigation, the most significant aspect of the majority’s discussion of inaction [in Husain] is its express disregard of decisions of intermediate appellate courts of England and Australia, both of which had concluded that failure to warn of DVT cannot constitute an Article 17 accident precisely because an omission cannot be an ‘event or happening.’” Judge Walker referred to the “potential schism” between Husain and DVT provisions abroad, but pointed out that the Husain decision’s disregard of the English and Australian decisions was based at least in part on the fact that the highest courts of England and Australia had not yet spoken. He also noted that the Blansett and Caman decisions have harmonized Husain with the Australian and U.K. deep vein thrombosis decisions in finding that there was no “accident” before he concluded that, in any event, “Caman is the law of the Ninth Circuit and therefore binds this court.”

In addition to disposing of the DVT plaintiffs’ basic “failure to warn” argument, Judge Walker also addressed two related contentions of the plaintiffs that he felt were not so readily disposed of by Caman. First, he rejected the plaintiffs’ argument that giving a “defective” DVT-related warning (as opposed to no warning at all) could be actionable as an “accident.” He rejected this theory as an impermissible, fault-based approach to defining an “accident” and also observed that “the court hesitates to give flight to a theory that creates disincentives for warning passengers of risks associated with air travel.” Second, he rejected the plaintiffs’ argument that a policy-level “election” by an airline’s management not to provide warnings on flights could constitute an accident, finding that such decisions “would have been too remote in time and space from the flights in question to give rise to liability.”

In making his ruling, Judge Walker stated that the question presented for decision “as a matter of law” in the DVT cases before him was whether “the airline defendants’ failure to warn of the risk of DVT constituted an Article 17 accident.” He proceeded to answer this question of law in the negative based on Caman and other DVT cases. This raises the question whether, in light of Caman and other recent DVT rulings, any future DVT “failure to warn” claims could be disposed of by motions to dismiss at the pleadings stage for failure to state a claim (under Rule 12(b)(6)) without the necessity of developing a factual record through discovery before filing a motion for summary judgment (under Rule 56). Some defendants had sought that very relief from Judge Walker nearly four years ago, but this was before Blansett, Povey, Deep Vein Thrombosis and Air Travel Group Litigation, Witty and, most importantly, Caman had been decided. If the issue were to be presented to the district court today, then there is reason to believe that it should be disposed of as a matter of law based on Caman and Judge Walker’s decision in In re Deep Vein Thrombosis Litigation. The Ninth Circuit’s October 2, 2006, unpublished dispositions in the Damon and Cortez cases lend some support to this view because they declined to limit Caman to its facts and applied it broadly in finding that there was no “event” associated with an alleged “failure to warn” of DVT.

Conclusion

The recent decisions of the Ninth Circuit in the Caman case and of Judge Walker in the In re Deep Vein Thrombosis multidistrict litigation are a clear signal that the “failure to warn of DVT” theory rejected by courts outside the United States will also be rejected by U.S. courts.

Perhaps more importantly in the long run, the process of resolving the DVT cases in the U.S. courts has allowed the circuit and district courts an occasion to smooth over the “schism” created by the U.S. Supreme Court’s Husain decision, in which well-reasoned decisions by highly-respected courts of other signatories to the Warsaw Convention were unfortunately disregarded by the Supreme Court majority. In particular, the recent DVT decisions should help limit the circumstances in which plaintiffs can, in the future, argue (on the basis of Husain) that a mere failure to follow an alleged standard airline industry custom or practice can constitute an “unexpected or unusual event” (i.e., an “accident”) sufficient to trigger liability under Article 17 of the Warsaw and Montreal Conventions.
 

For more information, e-mail Charles Coleman or Bob Craft at charles.coleman@hklaw.com  or bob.craft@hklaw.com,  respectively, or call toll free, 1-888-688-8500.
 

¹ “Deep vein thrombosis (DVT) is a medical condition that occurs when a thrombus (a blood clot) forms in a deep vein, usually in the extremities of the leg. DVT can lead to serious injury or death if the thrombus breaks off and lodges in the brain, lungs or heart, thereby causing a heart attack, stroke or other debilitating effects.” DVT Litig., 2006 WL 2547459 at *1.

² Convention for the Unification of Certain Rules Relating to International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, T.S. No. 876, 137 L.N.T.S. 11 (1934), reprinted in note following 49 U.S.C.A. § 40105 (1997)(“the Warsaw Convention”). The Warsaw Convention as set out in the note following 49 U.S.C.A. § 40105 was amended by various provisions including the Protocol Done at The Hague on 28 September 1955, 478 U.N.T.S. 371 (1955) and Montreal Protocol No. 4, but in ways that did not affect Article 17. Similarly, the Montreal Convention of 1999 (S. Treaty Doc. No. 106-45, reprinted at 1999 WL 33292734) retains the treaty language referring to an “accident” without material change.

³ Air France v. Saks, 470 U.S. 392, 405 (1985).

⁴ 540 U.S. at 658 (Scalia, J., dissenting) (characterizing the majority’s ruling).

⁵ The majority opinion in the Husain case disagreed: “But our conclusion is not inconsistent with [the U.K. Court of Appeals decision in Deep Vein Thrombosis and Air Travel Group Litigation]..” 540 U.S. at 655 n.9.

⁶ Deep Vein Thrombosis and Air Travel Group Litigation, [2003] EWCA Civ. 1005, 2003 WL 21353471 (July 3, 2003).

⁷ Qantas Ltd. v. Povey [2003] VSCA 227, 2003 WL 23000692 (Dec. 23, 2003).

⁸ Povey, [2005] HCA 33 at ¶ 88.

⁹ The Witty decision found that FAA regulations preempted the “failure to warn” claims on U.S. domestic flights because “[a]ny warning that passengers should not stay in their seats, but should instead move about to prevent DVT, would necessarily conflict with any federal determination that, all things considered, passengers are safer in their seats.” The Witty court also noted that the requirement of other warnings would necessarily dilute the impact of the warnings that are required by the FAA.

¹⁰ For example, passengers flying from Newark, New Jersey, to San Francisco, California, would be domestic passengers covered by the FAA preemption arguments accepted in the Witty case. International passengers whose journeys started at Paris/CDG and then continued to San Francisco via Newark on the same connecting (EWR-SFO) flight would be “Warsaw” passengers for whom the plaintiffs’ counsel would be seeking a different result.

¹¹ Ironically, the centerpiece for the plaintiffs’ proffered evidence that there was an accepted international aviation “industry standard” requiring DVT warnings was provided by the air carriers’ own trade organization, the International Air Transport Association (IATA). In particular, the plaintiffs prominently featured IATA press releases (dated as early as 2001) “recommending” that passengers be given DVT-related warnings at the time of reservation, prior to boarding and on board the aircraft.

¹² Deep Vein Thrombosis and Air Travel Group Litigation [2005] UKHL 72, ¶ 80 (Lord Mance). This point would resonate in Judge Walker’s August 21 decision, where he indicated that the plaintiffs’ logic leads from the aircraft to the boardroom, but that decisions at the corporate executive level about DVT warnings are “too remote in time and space from the flights in question to give rise to liability.” 2006 WL 2547459 at ¶ 80.

¹³ Deep Vein Thrombosis and Air Travel Group Litigation [2005] UKHL 72, ¶ 24 (Lord Scott of Foscote) (emphasis added).

¹⁴ Compare Husain, 540 U.S. at 655 & n.9 with the House of Lords’ decision (at ¶¶ 21, 22) where it was pointed out that the reasoning of Justice Thomas’ majority opinion rested on “[d]ictionary definitions of ‘event’ or ‘happening,’” which are not terms from the Warsaw Convention, but are instead terms from another U.S. Supreme Court case (Air France v. Saks) interpreting the treaty. It was respectfully suggested that courts around the world interpreting the Warsaw Convention should apply their textual interpretation skills to the treaty itself rather than to their own prior opinions interpreting the treaty.

¹⁵ Judgment was entered in favor of all Warsaw Defendants except: (1) bankrupt defendants Delta, Northwest and ATA because of their bankrupt status; and (2) defendants in five DVT actions where the plaintiffs had alleged additional “accidents” apart from simple “failure to warn.”