The opinion of the court was delivered by: Breyer, District Judge.
AMENDED FINDINGS OF FACT AND CONCLUSIONS OF LAW
On an international passenger flight in January 1998, Dr. Abid
M. Hanson, a nonsmoker who suffered from asthma, inhaled a
significant amount of second-hand smoke and died in the company
of his wife and three children. Dr. Hanson was not seated in the
"smoking" section of the airplane on which he died, but in a seat
three rows ahead. Considerable ambient smoke was present at this
location. Had Olympic Airways' flight crew responded
appropriately to the repeated requests to move Dr. Hanson from
this area, he might be alive today.
Plaintiffs Rubina, Hannah, Sarah and Isaac Husain bring this
wrongful death action under the liability provisions of the
Warsaw Convention. The parties agree that the Warsaw Convention
presents plaintiffs' exclusive remedy. Therefore, to determine
liability in this case, the Court must decide whether plaintiffs'
claim satisfies the requirements of that treaty. Specifically,
the Court must decide: (1) whether an "accident" occurred aboard
Olympic Airways Flight 417 on January 4, 1998; (2) whether that
accident caused the death of Abid Hanson; (3) whether the crew's
in-flight actions constituted "willful misconduct"; and (4) to
what extent, if any, Dr. Hanson's own negligence contributed to
Plaintiffs filed this suit in state court on December 24, 1998,
and defendant removed the case to this Court on March 23, 1999.
The Court heard testimony and received evidence in this case on
May 30, May 31, and June 1, 2000.*fn1 After receiving the
parties' post-trial briefs, the Court heard final arguments on
July 20, 2000. Supplemental letter briefs were submitted shortly
thereafter. This memorandum and order shall constitute the
Court's findings of fact and conclusions of law in this matter.
I. Dr. Hanson's Medical History
Dr. Abid Hanson was 52 years old in January 1998. For more than
two decades prior to his death, Dr. Hanson suffered from asthma.
Although Dr. Hanson did not receive regular treatment for his
condition, he carried a Proventil/Albuterol inhaler on his person
most of the time to assist his breathing. According to the
testimony of Dr. Hanson's wife, Ms. Rubina Husain, Dr. Hanson
used his inhaler more and more frequently as he aged. Perhaps as
a result of his asthmatic condition, Dr. Hanson was particularly
sensitive to second-hand cigarette smoke, and he generally tried
to avoid smoke-filled areas. Prior to January 4, 1998, Dr. Hanson
had never been affected by cigarette smoke during domestic or
international air travel.
In the two years preceding Dr. Hanson's death, he suffered two
notable medical emergencies of unknown origin. In each instance,
the incident may have been precipitated by Dr. Hanson's asthma or
by an allergic reaction to certain foods. The most serious
incident occurred during a family vacation in Las Vegas in
December 1996. One evening, Dr. Hanson and his wife spent
approximately ten minutes in a smoky restaurant, shared some
cheese pizza and a piece of quiche, and returned to their hotel
room. Shortly thereafter, Dr. Hanson began to have trouble
breathing. As his breathing difficulties worsened, Dr. Hanson
began to turn blue. Ms. Husain performed CPR until the paramedics
arrived, at which point Dr. Hanson was administered a shot of
epinepherine, a form of adrenaline. After resuscitating Dr.
Hanson, the paramedics moved him to the hospital, where he was
held overnight. The next morning, Dr. Hanson checked himself out
of the hospital against medical advice.
The precise cause of Dr. Hanson's near-fatal experience in Las
Vegas is not entirely clear. Although the dry Nevada air or the
smoke of the restaurant may have triggered the attack, it was
more likely caused by a reaction to certain foods. After
reviewing Dr. Hanson's medical records, Dr. Stephen Wasserman,
defendant's expert witness, described Dr. Hanson's troubles in
Las Vegas as anaphylaxis caused by a severe allergic reaction to
food. Plaintiffs' expert, Dr. Jeffrey Golden, agreed,
characterizing the episode as "bona fide food-related
After the incident in Las Vegas, Dr. Hanson purchased an
emergency carrying case containing epinepherine to treat any
future attacks. Shortly thereafter, Dr. Hanson experienced a
second medical crisis in the summer of 1997, at the home of a
friend in Alameda, California. On the evening in question, Dr.
Hanson had eaten dinner and then taken a walk outside. Upon Dr.
Hanson's return, Ms. Husain noticed that he was having trouble
breathing. Fearing that her husband was suffering an asthma
attack, Ms. Husain called the paramedics. When they arrived, the
paramedics administered oxygen and observed Dr. Hanson for about
ten minutes, but did not take him to the hospital. No
epinepherine was administered on that occasion.
The cause of Dr. Hanson's breathing problems in Alameda are
unknown. Although defendant posits that this second incident was
food-related, there is no evidence to support that hypothesis.
Equally likely is that the cold dry air which Dr. Hanson breathed
during his walk triggered an asthmatic reaction. In either case,
the incident in Alameda reveals little about the cause of Dr.
Hanson's death aboard Flight 417 six months later.
In late 1997, Dr. Hanson, his wife, Rubina Husain, and their
three children ("the Husains") traveled from San Francisco to
Athens and Cairo for a family vacation. They were accompanied on
their trip by family friends, Dr. Umesh Sabharwal, his wife and
Prior to arriving at the airport, the Husains were unaware that
Olympic Airways ("Olympic") permitted passengers to smoke
cigarettes on international flights. Upon learning for the first
time at the New York airport that their flight would include a
smoking section, the Husains requested non-smoking seats. On the
12-hour flight from New York to Athens, the Husains were seated
toward the middle or front of the aircraft. On the connecting
flight to Cairo, the Husains were again seated away from the
smoking section of the cabin. No ambient smoke was present at
either location. Dr. Hanson experienced no problems breathing on
The Husain family spent 12 days in Egypt, and embarked on their
return trip to the United States on January 4, 1998. According to
the testimony of Ms. Husain, the family arrived at the airport
early on the day of the return flight because they wanted to
ensure that they would be seated in the non-smoking section.
After receiving the family's seat assignments, Ms. Husain
returned briefly to the counter and showed the check-in agent a
letter signed by Dr. Hanson's brother, also a medical doctor,
explaining that Dr. Hanson had a history of asthma. After showing
the letter to the agent, Ms. Husain asked the agent to ensure
that the family would be seated in the non-smoking section of the
The first leg of the family's return trip was uneventful, but
Dr. Hanson began to experience some breathing trouble during a
layover in the Athens airport. The layover in Athens lasted
approximately three to four hours, and the large room in which
the family was seated was filled with cigarette smoke. During the
delay, Dr. Hanson used his inhaler more frequently than usual.
Because he was bothered by the pervasive smoke, Dr. Hanson
attempted to move into the restricted but slightly less smoky
area of the first class lounge, but airport officials asked that
he move back to the main room.
After the delay, the Husains and the Sabharwals boarded Olympic
Airways Flight 417. It was at this time that the Husains first
realized that they had been assigned seats at the rear of the
airplane cabin, only a few rows in front of the smoking section.
The airplane, a Boeing 747, contained a total of 426 passenger
seats in 56 rows. Rows one through 13 were designated as business
class seats, and rows 14 through 56 were designated as economy
class seats. In the economy class, rows 14 through 50 were
designated as non-smoking seats. The economy class smoking
section began at row 51 and extended to the rear of the cabin.
The Husains were seated in row 48 in seats A through E. The
Sabharwals were seated nearby. Dr. Husain was seated in seat 48E,
just three rows in front of the smoking section. No partition
separated the smoking from the non-smoking section.
When the Husains arrived at their seats, Ms. Husain noticed
Maria Leptourgou, an Olympic flight attendant, circulating in the
cabin and advising passengers to sit down for takeoff.*fn2 Ms.
Husain approached Ms. Leptourgou and told her that her husband
could not sit in a smoking area. Ms. Husain said to Ms.
Leptourgou, "You have to move him." The flight attendant paid
little attention to Ms. Husain's request, telling her to "have a
Once the plane was fully boarded, but prior to takeoff, Ms.
Husain again approached Ms. Leptourgou and asked the flight
attendant to move her husband now that all the passengers on the
plane were seated. This time Ms. Husain explained that her
husband was "allergic to smoke." At trial, Ms. Husain described
her pre-takeoff requests to the flight attendant as "adamant."
Ms. Leptourgou replied that she could not transfer Dr. Hanson to
another seat because the plane was "totally full." The flight
attendant also told Ms. Husain that she was too busy at the
moment to assist the Husains.*fn3
The Husains remained in their assigned seats during takeoff,
and the first several minutes of the flight passed without
incident. Shortly after takeoff, however, the captain turned off
the "no smoking" signs, and passengers in the rows behind the
Husains began to light cigarettes. From this point on, according
to the testimony of Sarah Husain, passengers in rows 51 through
56 were smoking continuously. In addition to those seated in rows
51 through 56, a number of passengers from other rows stood
temporarily in the aisles behind the Husains, smoking and
socializing. As a result, smoke was both pervasive and constant.
As soon as the smoking began, the Husains were surrounded by
ambient smoke which had floated forward into their row. When the
smoke began to linger in row 48, Dr. Hanson gestured to his wife
and complained that the smoke was "like a chimney." Ms. Husain
then stood up and contacted Ms. Leptourgou for a third time. This
time, Ms. Husain told the flight attendant, "You have to move my
husband from here." Again, Ms. Leptourgou curtly refused, stating
that the plane was full. Ms. Leptourgou indicated to Ms. Husain
that Dr. Hanson could switch seats with another passenger, but
that, in order to do so, Ms. Husain would have to walk through
the cabin and ask other passengers herself. She could not enlist
the assistance of the flight crew in changing her husband's seat.
Ms. Husain, becoming more desperate and more adamant, told the
flight attendant that her husband had to move, even if the only
available seat were in the cockpit or the first class area of the
cabin. The flight attendant, however, was equally resolute. She
offered no assistance. Finally, Ms. Husain seeing no hope for
accommodation, returned to her seat.
Unbeknownst to the Husains, Flight 417 was actually not full.
In fact, the flight contained eleven empty passenger seats.*fn4
The cabin had a capacity of 426 seats, 44 of which were located
in business class and 382 of which were located in economy class.
Four of these seats, located in a row immediately behind the
smoking section, were designated as "crew rest" seats. Only 411
passengers traveled on Flight 417 on January 4. Therefore, the
flight had eleven unoccupied seats, not including those
designated for crew rest. Two of those empty seats were located
in the business class section of the cabin.
In addition to the unoccupied seats, Flight 417 carried 28
"non-revenue passengers." Non-revenue passengers include
employees and relatives of employees of Olympic Airways and other
airlines. Of these 28 passengers, eleven were seated in the
cabin's smoking sections. Of the remaining 17 non-revenue
passengers, two were seated in rows one and two in business class
and 15 were seated in rows 15 through 36 in economy class.
As the flight progressed, ambient smoke continued to circulate
in the area of row 48. Approximately two hours into the flight,
the crew served a meal. The evidence before the Court establishes
that Dr. Hanson ordered a meal and that he ate some portion of
it. He also shared some of his food with his daughter, Sarah, and
with a woman seated to his right. According to Sarah, Dr. Hanson
"wasn't really eating that much" of his meal.
Immediately after the meal service, smoking increased
noticeably in the rows behind the Husains. Around this time, Dr.
Hanson became unusually quiet. At some point shortly after the
meal, Dr. Hanson asked his wife for a new inhaler, indicating
that the one he had been using had emptied. Ms. Husain retrieved
a full inhaler from the overhead bin. Dr. Hanson turned around
several times to look at the smoke in the rows behind him. He
then told Sarah that the smoke was bothering his allergies, and
decided to move toward the front of the cabin to breathe fresher
Sarah notified her mother of Dr. Hanson's discomfort, and Ms.
Husain followed him to the front of the aircraft. Dr. Hanson
walked forward a number of rows, stopping in the galley area
between rows 19 and 20, well into the non-smoking area. When Ms.
Husain reached him, he was leaning against a chair near the
galley area. Dr. Hanson gestured to Ms. Husain to get the
epinepherine that he carried in his emergency kit, which Ms.
Husain had stored in a carry-on bag. Ms. Husain rushed to the
rear of the plane to retrieve the epinepherine, then returned to
the galley area and administered a shot to her husband in a
pre-measured syringe.*fn5 She then ran to the rear of the cabin
to wake Dr. Sabharwal.
Within seconds, Dr. Sabharwal, who, by chance, was an allergy
specialist, arrived at the front of the plane to assist. Noticing
that Dr. Hanson was in respiratory distress, Dr. Sabharwal pulled
him onto the floor, gave him another shot of epinepherine (.20
ccs), and began to administer CPR.*fn6 At this point, Dr.
Hanson's pulse was barely palpable. Dr. Sabharwal noticed that,
while Dr. Hanson's lower airways were obstructed, his upper
airway was not. For this reason, he was able to push some air
into Dr. Hanson's lungs during the administration of CPR. During
the treatment, Dr. Sabharwal also gave Dr. Hanson a shot of
Bricanyl, which had been retrieved from the Husains' emergency
At some point during this period, Ms. Husain requested that one
of the flight attendants provide an oxygen canister and mask for
her husband. According to Ms. Husain's testimony, two flight
attendants attempted to open the oxygen canister, but were unable
to do so.*fn7 Ms. Husain summoned Sarah, who was walking toward
the front of the aircraft, and asked her to retrieve Dr. Hanson's
oxygen canister with its nasal canula from the family's emergency
kit. Sarah relayed this message to her brother, Isaac, who
brought the oxygen to Ms. Husain.
As they attempted to resuscitate Dr. Hanson, Dr. Sabharwal and
Ms. Husain administered oxygen through a nasal canula. In
addition, oxygen may have been administered through Olympic's
canister with an attached mask. However, because Dr. Hanson was
not able to breathe spontaneously, Dr. Sabharwal determined that
the oxygen was not useful. About five minutes after Dr. Sabharwal
arrived on the scene, the Olympic flight crew brought him a
medical kit. By this point, however, Dr. Sabharwal believed that
only a fullyequipped
medical crash kit could save Dr. Hanson's life.
As time passed, a few other passengers arrived in the galley to
assist Dr. Sabharwal, but no one was able to save Dr. Hanson. At
approximately 4:40 p.m. Greenwich Mean Time, Dr. Sabharwal
announced that Dr. Hanson had died.
During the entire incident, the airplane's captain never turned
on the "no smoking" sign or otherwise requested that the
passengers in the rear of the plane stop smoking.
III. The Medical Causes of Dr. Hanson's Death
For religious reasons, no autopsy was performed on Dr. Hanson's
body after his death, and the direct cause of his fatal attack is
a matter of some dispute. Plaintiffs argue that Dr. Hanson's
death was caused by a severe asthma attack brought on by
inhalation of cigarette smoke. Defendant, on the other hand,
argues that Dr. Hanson died as a result of anaphylaxis caused by
an allergic reaction to food, or that he died as a result of some
other unknown medical problem. As discussed below, the Court
finds that plaintiff has established by a preponderance of the
evidence that smoke ingestion during the first two hours of
Flight 417 was a primary cause of Dr. Hanson's death.
Anaphylaxis is an allergic emergency which may be caused by an
allergy to external material. Symptoms of anaphylaxis include
skin discoloration, obstruction of the upper airway, disturbance
in the intestinal tract, drop in blood pressure, shock or rapid,
ineffective heartbeat. An asthmatic attack, on the other hand, is
a reversible narrowing of the airway caused by air pollutants or
other irritants, such as cigarette smoke.
The symptoms of asthma and anaphylaxis overlap significantly.
Indeed, some severe asthma attacks may be characterized as
anaphylactic reactions. In this case, the course of events with
respect to the timing of the meal, Dr. Hanson's smoke inhalation,
and the onset of his reaction support theories labeling the cause
of death as both anaphylaxis and asthma. Both anaphylaxis and
asthma attacks produce the same symptoms in the lower airway.
Either can result in death. Epinepherine can be used to treat
both anaphylaxis and asthma, but it is not necessarily
efficacious in either case. The fact that Dr. Hanson received two
or more injections of epinepherine during the flight and that the
drug had no effect does not assist the Court in arriving at a
cause of death.
Although anaphylaxis and asthma are sometimes difficult to
differentiate, the Court finds that smoke played a significant
causal role in Dr. Hanson's death. As both Dr. Golden and Dr.
Wasserman acknowledged, cigarette smoke can act as an irritant.
Moreover, the greater an individual's exposure to smoke, both in
terms of time and intensity, the greater the irritant effect. As
Dr. Golden explained in his testimony before the Court, the
presence of an irritant can cause bronchospasm, constricting an
The Court finds significant the testimony of the Husain family
and Dr. Sabharwal regarding Dr. Hanson's behavior in the Athens
airport. During the hours-long delay in Athens, Dr. Hanson used
his inhaler frequently and was increasingly bothered by the
prevalent smoke. To escape the effects of the smoke, Dr. Hanson
illicitly entered the first class lounge, where the air quality
was slightly better. Dr. Hanson's problems in Athens indicate his
sensitivity to smoke on the day in question.
Defendant introduced evidence at trial to establish that Dr.
Hanson may have died as a result of an anaphylactic reaction to
yeast, tomatoes or grapes in the in-flight meal. This contention
is belied by several facts in the record. First, there is no
evidence that Dr. Hanson ate any grapes, tomatoes or bread-based
products on the flight. In fact, the only credible evidence
regarding Dr. Hanson's food intake was the testimony of his
daughter, Sarah. According to Sarah, Dr. Hanson received a meal
on the flight, but did not eat the whole thing, and in fact
shared it with both of his neighbors. No witnesses testified that
they observed Dr. Hanson eating any of the foods to which he was
allergic while seated in row 48. Without further evidence of Dr.
Hanson's sensitivities and his food intake aboard the flight, the
Court cannot conclude that his death was caused by a reaction to
Further, Dr. Hanson's death lacked certain symptoms that
frequently appear in cases of anaphylaxis. Anaphylaxis caused by
oral injection of an allergen commonly causes swelling in the
upper airway. In this case, Dr. Sabharwal observed that Dr.
Hanson's upper airway was not obstructed. Anaphylaxis frequently,
but not always, causes discoloration, redness and hives on a
victim's chest and neck. Dr. Sabharwal noticed none of those
symptoms in this case.
Moreover, the testimony of Dr. Sabharwal, the only doctor who
actually treated Dr. Hanson during his trauma, supports the
Court's conclusion. While Dr. Sabharwal testified that he could
not definitively diagnose the cause of Dr. Hanson's death, he did
offer a differential diagnosis, assessing the likely causes of
death in order of their probability. Dr. Sabharwal opined that,
in light of Dr. Hanson's asthma and the obstruction of Dr.
Hanson's airways, he most likely died as a result of status
asthmaticus, or "totally uncontrolled asthma." The second most
likely cause of death, according to Dr. Sabharwal, was
anaphylaxis, and the third was "cardiac problems." Failing each
of these potential causes, Dr. Sabharwal concluded that Dr.
Hanson's death may have been precipitated by unknown causes.
Dr. Golden's testimony further supports the Court's factual
findings regarding the cause of Dr. Hanson's death. Dr. Golden
testified that, in the absence of food, the only possible cause
of death in this case would be an asthmatic reaction. Because Dr.
Hanson may have eaten some of his meal, Dr. Golden concluded that
it is difficult to distinguish whether Dr. Hanson's condition was
anaphylaxis or asthma. However, Dr. Golden was able to conclude