September 19, 2017

Rehearing Sought of Sixth Circuit’s Montreal Convention Holding on Recoverability of Mental Injuries

Holland & Knight Aviation Law Blog
Judy R. Nemsick

Defendant-appellee Etihad Airways recently petitioned the U.S. Court of Appeals for the Sixth Circuit for panel rehearing and rehearing en banc of Doe v. Etihad Airways, P.J.S.C.,1 a decision by a panel of that court that departed from well-established treaty precedent to hold it is not necessary for mental injuries to flow from the passenger's physical injury in order to be recoverable under the Montreal Convention (MC). The panel concluded that, once a passenger establishes that an Article 17(1) accident caused physical injury, he or she may seek recovery for any provable damages traceable to the accident, including mental injuries accompanying but not necessarily caused by physical injuries. As a result, the panel held that plaintiff in this action may seek emotional distress damages caused not only by the physical injury of a needle prick but also by the "accident" of being struck by a stray hypodermic needle left in the seatback pocket of the aircraft.

Doe is inconsistent with numerous decisions of other Federal Circuit Courts addressing Article 17 damages under both the MC and Warsaw Convention (WC). The court, for example, rejected the widely-followed Second Circuit holding in Ehrlich v. Am. Airlines, Inc.,2 which conducted an extensive analysis of the same issue under Article 17 of the WC and concluded that only mental injuries caused by physical injuries are recoverable.3 Both Ehrlich and the Eighth Circuit in In re Air Crash at Little Rock, Ark., on June 1, 1999 (Lloyd)4 recognize that to allow a physical injury, "no matter how minor or unrelated", to trigger recovery of any and all mental injuries arising from an Article 17 accident would violate "the spirit"5 of Eastern Airlines, Inc. v. Floyd6 – the seminal US Supreme Court case expressly holding that purely mental injuries are not recoverable under Article 17 of the WC. Similarly, the Eleventh and Fifth Circuits (and numerous district courts) have favorably cited to and followed Ehlrich and Lloyd in cases governed by the MC.7

Because Doe is contrary to a strong body of case law in other Circuits and could be considered as undermining the U.S. Supreme Court's views of Article 17 as set forth in Floyd, it appears unlikely that the decision will be followed outside the Sixth Circuit. The panel's reasoning, including that the MC is intended to favor passengers, does not validate its incongruous views and digression from treaty precedent. Rehearing is a possibility and, if denied, a petition for certiorari review may be filed with the U.S. Supreme Court.



1 __ F.3d ___, No. 16-1042, 2017 WL 3723233 (6th Cir. Aug. 30, 2017), pet. for reh'g filed (6th Cir. Sept. 13, 2017). 

2 360 F.3d 366 (2d Cir. 2004); see also Bobian v. Czech Airlines, 93 Fed. Appx. 406, 407 (3d Cir. 2004) (citing Ehrlich favorably); Alvarez v. Am. Airlines, Inc., No. 98 Civ. 1027, 1999 WL 691922, at *5 (S.D.N.Y. Sept. 7, 1999); Longo v. Air France, No. 95 Civ. 0292, 1996 WL 866124, at *2 (S.D.N.Y. July 25, 1996); Jack v. Trans World Airlines, Inc., 854 F. Supp. 654, 668 (N.D. Cal. 1994). 

3 The passengers in Ehrlich sustained physical injuries as a result of turbulence, but could not recover for fear of flying and nightmares. 

4 291 F.3d 503 (8th Cir. 2002). 

5 Ehrlich, 360 F.3d at 386 (quoting Lloyd, 291 F.3d at 510). 

6 499 U.S. 530 (1991). 

7 See, e.g., Jacob v. Korean Air Lines Co., 606 Fed. Appx. 478, 482 (11th Cir.), cert. denied, 136 S. Ct. 267 (2015); Bassam v. Am. Airlines, 287 Fed. Appx. 309, 317 (5th Cir. 2008); see also Naqvi v. Turkish Airlines, Inc., 80 F. Supp. 3d 234, 241 (D.D.C. 2015); Schaefer-Condulmari v. US Airways Group, LLC, 2012 WL 2920375, at *3-4 (E.D. Pa. July 18, 2012); Kruger v. United Airlines, Inc., 481 F. Supp. 2d 1005, 1009 (N.D. Cal. 2007). This is consistent with the MC drafters' intent to have MC provisions, including Article 17(1), construed consistently with the extensive body of WC precedent that had developed over the years. S. Exec. R. 1-8-8, at 3 (2003).

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