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October 3, 2000


The opinion of the court was delivered by: Breyer, District Judge.


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 his death.

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 anaphylaxis."

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.

II. Dr. Hanson's Death

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 their children.

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 either flight.

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 plane.

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 seat."

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 air.

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 kit.

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 individual's airways.

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 the food.

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 that ...

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