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March 3, 1994

DAVID and BARBARA JACK, et al., Plaintiffs,

The opinion of the court was delivered by: BARBARA A. CAULFIELD

 The order of the court entered March 4, 1994 regarding summary judgment is amended to read as follows:


 On July 30, 1992, Trans World Airlines flight 843, departing New York's John F. Kennedy Airport for San Francisco, experienced an aborted takeoff, crash and fire. Fire completely destroyed the plane but all passengers survived. During the aborted takeoff and evacuation, many passengers suffered minor physical injuries. Many passengers were traumatized by the incident.

 Flight 843 passengers filed several lawsuits in San Francisco Superior Court, seeking damages for physical injury and emotional distress. Defendant Trans World Airlines, Inc. ("TWA") removed to federal court the three actions in which the plaintiffs held tickets for international flights. This court previously denied plaintiffs' motion to remand to state court and held that the sole basis of recovery available to passengers injured while traveling pursuant to contracts of international carriage was under the Multilateral Convention for the Unification of Certain Rules Relating to International Transportation by Air, opened for signature October 12, 1929, 49 Stat. 3000 (1934), T.S. No. 876, reprinted at 49 U.S.C. app. § 1502 note (1988) (hereinafter, the "Warsaw Convention" or "Convention").

 Defendant TWA now moves for partial summary judgment on several grounds. TWA moves for partial summary judgment against plaintiffs claiming physical injuries and emotional distress on the ground that emotional distress damages are not allowed as to those plaintiffs who did not have physical manifestations of emotional distress. TWA moves for partial summary judgment against plaintiffs claiming emotional distress only on the ground that such claims are barred by Eastern Airlines, Inc. v. Floyd, 499 U.S. 530, 111 S. Ct. 1489, 113 L. Ed. 2d 569 (1991) (hereinafter "Floyd"). TWA moves for partial summary judgment on the state law causes of action on the ground that they are preempted by the Warsaw Convention. Finally, TWA moves for partial summary judgment on the punitive damages claims on the ground that such damages are not allowed under the Warsaw Convention.

 Plaintiffs make several legal arguments in opposition to the motion and present evidence which they contend requires denial of the motion. Much of the evidence submitted by plaintiffs was challenged by TWA.


 A. Standards for Summary Judgment.

 Summary judgment is appropriate where "there are no genuine issues as to any material fact and . . . the moving party is entitled to summary judgment as a matter of law." Fed. R. Civ. P. 56(c). A genuine issue exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986), and material facts are those "that might affect the outcome of the suit under the governing law," id. at 248, 106 S. Ct. at 2510. All reasonable inferences from the evidence must be drawn in favor of the non-moving party. Id. at 242.

 B. Timeliness of Motion.

 At the hearing on TWA's motion, plaintiffs' counsel argued for the first time that the motion was premature because of the limited discovery allowed in this case under the Joint Pretrial Order of September 28, 1993. The court is unpersuaded by this argument. The Joint Pretrial Order provided for discovery in three phases; the cases have not moved beyond Phase 1. The assertion that plaintiffs were prevented from gathering evidence to present a meaningful opposition to TWA's motion simply is not supported by the Joint Pretrial Order. The discovery permitted in Phase 1 included, without limitation, obtaining plaintiffs' medical records from July 1, 1988 through the present, depositions of plaintiffs, depositions of treating doctors, and ten interrogatories regarding damages. Any information relevant to the issues raised by TWA's motions was discoverable in Phase 1. Moreover, the information plaintiffs needed is and was in their own hands and not in the hands of third parties.

 Plaintiffs' counsel's suggestion that TWA sandbagged plaintiffs by using the original interrogatory responses is meritless. TWA had no duty to use different discovery tools such as depositions and requests for admissions to confirm information it had received in plaintiffs' responses to interrogatories. Nor may plaintiffs claim that TWA's reliance on the original interrogatory responses was unjustified. Plaintiffs' counsel told TWA's counsel at the June 1993 mediation that amended responses to the interrogatories immediately would be forthcoming. TWA filed its motions four months later, without having received the amended responses.

 Upon receipt of TWA's motion, plaintiffs requested an extension of the deadline to file their oppositions because they anticipated it would "take an enormous amount of time and energy to oppose" the motions. The court granted a four-week extension. Plaintiffs continued to submit evidence in support of their opposition long after the extended deadline for the opposition had passed. This evidence was not rejected as untimely.

 C. Evidentiary Rulings.

 Among the evidence submitted by plaintiffs in opposition to TWA's motions were affidavits of plaintiffs, attorneys, a psychiatrist, a biomechanic, and an engineer; photographs and videotapes of the incident; and original as well as amended interrogatory responses. The court will address the problems presented by plaintiffs' evidence before turning to the other issues raised by the motions.

 1. Execution of Affidavits and Declarations.

 Federal Rule of Civil Procedure 56(e) permits the use of affidavits in support of or opposition to a motion for summary judgment. An affidavit must be confirmed by oath or affirmation. Brady v. Blue Cross and Blue Shield of Texas, Inc., 767 F. Supp. 131, 135 (N.D. Tex. 1991). In lieu of an affidavit, a party may submit an unsworn declaration made under penalty of perjury. 28 U.S.C. § 1746. Declarations executed outside of the United States must be declared to be made "under penalty of perjury under the laws of the United States of America." Id. All declarations must be declared to be "true and correct."

 Plaintiffs submitted numerous affidavits *fn1" containing the following language: "I [name] declare under penalty of perjury and of the laws of [foreign country], the State of California and the United States of America as follows:" (emphasis and bracketed material added). Most of the affidavits were executed outside of the United States. *fn2"

 On January 11, 1994, the court ordered twenty-four of plaintiffs' affidavits stricken because they were neither confirmed by oath or affirmation nor stated to be true and correct and made under penalty of perjury under the laws of the United States of America. *fn3" The affiants failed to strictly or even substantially comply with the requirements for execution of affidavits and declarations. The court permitted the plaintiffs to submit replacement affidavits free of the described defects.

 Plaintiffs resubmitted the same affidavits after making changes only on the first page of each to correct the recitations that the document was made under penalty of perjury and that the statements made were true and correct. The changed documents were not re-executed by plaintiffs and there was no marking on the affidavits that the changes had been made with the affiants' permission. By changing the text of document after they had been signed, plaintiffs created a new problem. These documents altered after execution are unacceptable and are stricken from the record. *fn4"

 2. Translated Affidavits.

 Witness testimony translated from a foreign language must be properly authenticated and any interpretation must be shown to be an accurate translation done by a competent translator. See Fed. R. Evid. 604 and 901.

 Signed foreign language versions of affidavits were attached to several of the plaintiffs' English-language affidavits. Originally, plaintiffs offered no explanation of any translation. In its January 11, 1994 order, the court directed plaintiffs to submit appropriate evidence regarding the accuracy of any translation and the qualifications of the translator. Plaintiffs then submitted a statement by an individual at a local translation center stating that the translations were true and correct. That statement is inadequate in that it is not a sworn statement, does not describe the maker's qualification or expertise regarding language translation, does not state whether the maker did the translations, and does not explain the circumstances under which the affiants signed affidavits in two languages (e.g., whether the affiants were advised of the content of the English-language affidavits before signing them). Plaintiffs have failed to lay a proper foundation for the admission of the translated affidavits. *fn5"

 3. Contradictory Testimony.

 A party cannot create a genuine issue of fact merely by submitting testimony which contradicts, without explanation, his earlier sworn testimony. Radobenko v. Automated Equipment Corp., 520 F.2d 540, 543-44 (9th Cir. 1975). Sham affidavits may be disregarded in summary judgment proceedings. This rule "does not automatically dispose of every case in which a contradictory affidavit is introduced to explain portions of earlier deposition testimony. . . . Therefore, before applying the Radobenko sanction, the district court must make a factual determination that the contradiction was actually a 'sham.'" Kennedy v. Allied Mutual Ins. Co., 952 F.2d 262, 266-67 (9th Cir. 1991). An affidavit might not be a sham if the affiant's actions were the result of honest discrepancy, a mistake, or the result of newly discovered evidence. Also, if the affiant gives a plausible excuse for the contradiction, the affidavit might not be deemed a sham. Miller v. A.H. Robins Co., 766 F.2d 1102, 1104 (7th Cir. 1985).

 At issue in this case is whether plaintiffs' original interrogatory responses should be treated as sworn statements. The court earlier held a hearing to resolve a factual dispute between the parties. The court finds the following facts based on the affidavits of counsel and the parties' presentations at the earlier evidentiary hearing. During an earlier mediation, counsel for both parties agreed to use Judicial Council form interrogatories to provide information about plaintiffs' claimed injuries and damages. TWA served Judicial Council interrogatories on each of the plaintiffs. The instructions on the first page of the form interrogatories clearly required verified answers. The responses served by plaintiffs were signed by plaintiffs' counsel, but were not verified. After receiving the interrogatory responses, TWA's counsel requested the verifications several times. In one telephone conversation, plaintiffs' counsel told TWA's counsel that TWA could treat the responses as though verified and that verification forms were in the process of being sent to TWA. This conversation was confirmed in a follow-up letter. Upon receiving TWA's mediation brief, plaintiffs' counsel apparently learned that several plaintiffs would not be able to recover under the Warsaw Convention because they claimed only emotional distress injuries in their interrogatory responses. Plaintiffs then argued that the interrogatory responses were not intended to be binding. At the mediation in June 1993, plaintiffs' counsel assured TWA's counsel that defense counsel promptly would receive plaintiffs' amended responses to the interrogatories. No amended responses or verifications were received until November 1993, after TWA filed its motions for summary judgment. Many of those amended responses were not verified, and in a few cases, the verifications attached to the amended responses pre-dated the mediation hearing and/or verified the original responses. Based on the foregoing, the court determines that the original responses should be deemed to be sworn statements by the plaintiffs.

 The original interrogatory responses of those plaintiffs who had initially listed only emotional distress injuries contradict their amended interrogatory responses. *fn6" All plaintiffs now make physical injury allegations whereas most had not done so in their original interrogatory responses. Even those plaintiffs who had originally listed some physical injuries greatly expanded the list of their injuries in the amended responses.

 Plaintiffs failed to adequately explain the contradictory statements. No plaintiff explained why his or her response changed. The person offering the changed testimony, not his or her lawyer, should explain why his or her testimony has changed. Here, the only explanation offered for the changed testimony was from a legal assistant for plaintiff's counsel. Her explanation was unconvincing. The legal assistant testified by affidavit that plaintiffs' counsel had told TWA "that many of our clients had interpreted this ambiguous question" narrowly. The declarant did not state that the plaintiffs themselves misunderstood any question. The explanation is also unconvincing because some of the plaintiffs did list physical injuries, rather than just mental injuries, indicating that at least those plaintiffs understood the interrogatories. The interrogatories were not ambiguous. *fn7" Although the legal assistant stated that the plaintiffs interpreted the interrogatories to call for statements of their injuries as of the date of the response to the interrogatory, rather than as of the date of the accident, this explanation is not supported by the responses. A number of plaintiffs complained of transient, minor injuries such as cuts, scratches and bruises suffered during the incident.

 The court concludes that the amended interrogatory responses with their boilerplate catalog of physical injuries were sham contradictions of the original interrogatory responses. This unexplained contradictory testimony cannot create a triable issue of fact and defeat summary judgment.

 4. Other Evidence.

 a. Photographs and Videotapes. The court will receive crash photographs and videotapes in spite of hearsay, authentication and foundation problems. The court will not exclude the evidence on these grounds because the foundation problems may have been outside the control of plaintiff's counsel due to the discovery restrictions in the Joint Pretrial Order. The photographs of the airplane while it was burning and after the fire had been extinguished are, however, irrelevant to the issues presented to the court in these motions. Fed. R. Evid. 401 and 402. The videotape, which even plaintiffs concede is presented so that the court may see the severity of the accident, is irrelevant to the summary judgment proceedings. As noted throughout this order, the severity of the accident and the typical passenger's experiences are irrelevant because each plaintiff's injuries must be evaluated separately.

 b. NTSB Reports. The report by the National Transportation Safety Board regarding a different incident on a different airline at a different airport is inadmissible. 49 U.S.C. § 1441(e); Protectus Alpha Navigation Co. v. North Pacific Grain Growers, Inc., 767 F.2d 1379, 1384-85 (9th Cir. 1985); In Re Air Crash Disaster at Sioux City, Iowa, 780 F. Supp. 1207 (N.D. Ill. 1991). The declaration of plaintiffs' counsel, Dennis Lods, reciting the contents of an expected NTSB Report regarding the Flight 843 accident is also inadmissible because it merely recites the contents of a report inadmissible under 49 U.S.C. § 1441(e).

 c. Declaration of Psychiatrist. Plaintiffs offered the declaration of psychiatrist Martin Blinder regarding the symptoms of the plaintiffs. Without any indication that he has legal training and after stating that he did not fully grasp the meaning of the terms "lesions corporelles" and "blessures," Dr. Blinder opines that it is clinically probable that most if not all of the passengers sustained the "lesions corporelles" or "blessures" required by the Supreme Court's interpretation of the Warsaw Convention in Floyd. These legal opinions and conclusions are inadmissible because the declarant lacks the appropriate qualifications. Fed. R. Evid. 702 and 703.

 D. Constitutional Challenges to Warsaw ...

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