The opinion of the court was delivered by: Vaughn R. Walker, United States District Judge
In the above captioned cases, plaintiffs bring personal injury claims against three airlines and an airplane manufacturer for damages arising from deep vein thrombosis (DVT) caused by defendants' seating configuration on international flights.
Presently before the court are the airline defendants' motions to dismiss plaintiffs' complaints with prejudice (02-1693: Doc #11; 02-2997: Doc #8). With the exception of the spousal claims in Miller, the claims raised by each of the passenger plaintiffs are identical and based on identical material allegations, a circumstance likely resulting from the prosecution of both cases by the same counsel. The amended complaints at issue in the pending motions were even filed within a day of each other. As a result, the court finds it appropriate to consider and address within this single order the legal sufficiency of claims against the airline defendants in both the third amended complaint in Miller et al v. Continental Airlines et al, Case No 02-1693-VRW, and the second amended complaint in Wylie v. American Airlines Inc et al, Case No 02-2993-VRW. For the reasons set forth below, the court GRANTS in part and DENIES in part defendants' motions (02-1693: Doc #11; 02-2997: Doc #8).
The following factual summary comes from plaintiffs' amended complaints. See Miller TAC (02-1693: Doc #10); Wylie SAC (02-2997: Doc #7). On or about April 12, 2001, plaintiff Debra Miller traveled as a paying passenger on board a flight operated by Continental Airlines and Air France from Paris, France, to San Francisco, California, with a stop-over in Newark, New Jersey. See Miller TAC (02-1693: Doc #10), ¶¶ 9, 10. Similarly, on July 4, 2001, plaintiff Daniel Wylie traveled as a paying passenger on board a direct flight from Paris, France, to San Francisco, California, operated by defendant American Airlines. See Wylie SAC (02-2997: Doc #7), ¶¶ 7-10.
As a result of defendants' seating configuration, both passengers, either during or after the flight, developed DVT, which is a medical term used to describe the formation of a blood clot in a major vein. See Miller TAC (02-1693: Doc #10), ¶ 12; Wylie SAC (02-2997: Doc #7), ¶ 10. In both cases, defendants knew or should have known "that the aircraft was equipped with a seating configuration and seats (for which [plaintiffs] purchased [tickets] and to which [they were] subjected for the duration of the flight) could and would cause deep vein thrombosis." Miller TAC (02-1693: Doc #10), ¶ 12; Wylie SAC (02-2997: Doc #7), ¶ 10. The airline defendants are alleged to have "so negligently transported" plaintiffs, and defendant Boeing Company is alleged to have "so negligently designed, constructed and equipped the aircraft's seating", as to have caused the injuries at issue. See id.
Miller and Wylie each allege the same five claims for relief, using substantively identical language:
(1) a claim for damages under the Warsaw Convention
captioned, which is captioned as "treaty liability"
(Miller TAC (02-1693: Doc #10), ¶¶ 14-15; Wylie SAC
(02-2997: Doc #7), ¶¶ 11-12);
(2) negligence on the part of all defendants (Miller
TAC (02-1693: Doc #10), ¶¶ 16-19; Wylie SAC (02-2997:
Doc #7), ¶¶ 13-14);
(3) common carrier negligence against the airline
defendants (Miller TAC (02-1693: Doc #10), ¶¶ 15-16;
Wylie SAC (02-2997: Doc #7), ¶¶ 20-21);
(4) product liability against all defendants (Miller
TAC (02-1693: Doc #10), ¶¶ 24-29; Wylie SAC (02-2997:
Doc #7), ¶¶ 17-22); and
(5) breach of warranty also against all defendants
(Miller TAC (02-1693: Doc #10), ¶¶ 30-31; Wylie SAC
(02-2997: Doc #7), ¶¶ 23-24).
In addition, Miller and Wylie also seek punitive damages. Miller TAC (02-1693: Doc #10), ¶¶ 33-35; Wylie SAC (02-2997: Doc #7), ¶¶ 25-27.
In addition, in one of the cases, Miller et al v. Continental et al, Case No 02-1693-VRW, plaintiff Michael Dobler, the spouse of a passenger, also asserts claims for negligent infliction of emotional distress and loss of consortium. Miller TAC (02-1693: Doc #10), ¶¶ 22-23, 32.
This court has jurisdiction pursuant to 28 U.S.C. § 1331 as this case arises under a treaty of the United States, namely the Warsaw Convention. See Benjamins v. British European Airways, 572 F.2d 913, 916-18 (2d Cir. 1978), cert denied, 439 U.S. 1114 (1979). In addition, there is complete diversity between plaintiffs and defendants and an amount in controversy exceeding $75,000 in both actions. Thus, this court also possesses subject matter jurisdiction pursuant to 28 U.S.C. § 1332.
Under F.R.C.P. 12(b)(6), dismissal is proper only when it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). All material allegations in the complaint must be taken as true and construed in the light most favorable to the plaintiff. See In re Silicon Graphics Inc Sec Lit, 183 F.3d 970, 980 n. 10 (9th Cir. 1999).
The parties agree that this case is controlled by the treaty commonly referred to as Warsaw Convention (hereinafter, the Convention), which is formally known as the Convention for the Unification of Certain Rules Relating to International Transportation by Air, Oct 12, 1929, 49 Stat 3000, 3014, TS No 876 (1934), reprinted at note following 49 U.S.C. § 40105. See Miller TAC (02-1693: Doc #10), ¶ 4 (alleging that "this is a civil action arising under a treaty of the United States, namely the Warsaw Convention"); Wylie SAC (02-2997: Doc #7) (same allegation), ¶ 4; Defs Mem (02-1693: Doc #11), at 6; Def Mem (02-2997: Doc #8), at 4. "The Warsaw Convention is an international treaty governing the liability of air carriers engaging in international air travel." Wayne v. DHL Worldwide Express, 294 F.3d 1179, 1185 (9th Cir. 2002) (quoting Read Rite v. Burlington Air Express, Ltd, 186 F.3d 1190, 1194 (9th Cir. 1999)). It provides the exclusive remedy for conduct falling within its provisions. El Al Israel Airlines, Ltd v. Tseng, 525 U.S. 155, 161 (1999).
Article 17 of the Convention addresses claims for personal injury and provides a cause of action against an air carrier, which:
shall be liable for damage sustained in the event of
death or wounding of a passenger or any other bodily
injury suffered by the passenger, if the accident which
caused the damage so sustained took place on board the
aircraft or in the course of any of the operations of
embarking or disembarking.
49 Stat 3018; Tseng, 525 U.S. at 162-63. An air carrier may be liable for passenger injury under Article 17 "only when three conditions are satisfied: (1) there has been an accident, in which (2) the passenger suffered `mort,' `blessure,' `ou * * * toute autre lésion corporelle' [death, wounding or other bodily injury], and (3) the accident took place on board the aircraft or in the course of operations of embarking or disembarking." Eastern Airlines, Inc v. Floyd, 499 U.S. 530
, 535-36 (1991).
An "accident" under the Convention has been defined by the Supreme Court as "an unexpected or unusual event or happening that is external to the passenger." Air France v. Saks, 470 U.S. 392, 405 (1985). This definition is to "be flexibly applied after assessment of all the circumstances surrounding a passenger's injuries." Tseng, 525 U.S. at 166 n. 9; Saks, 470 U.S. at 405.
In cases where there is contradictory evidence, it is
for the trier of fact to decide whether an `accident'
as here defined caused the passenger's injury. But
when the injury indisputably results from the
passenger's own internal reaction to the usual, normal,
and expected operation of the aircraft, it has not been
caused by an accident, and Article 17 of the Warsaw
Convention cannot apply.
Saks, 470 U.S. at 405-06.
Underscoring the fact-intensive and particularized nature of the inquiry, in Tseng, 522 U.S. at 166 n. 9, the Supreme Court called into question the Second Circuit's application of the definition of the term "accident". In that case, the Second Circuit had concluded that "a routine [security] search, applied erroneously to plaintiff in the course of embarking on the aircraft" may not be fairly characterized as an "accident" because such security searches, including the risk of mistakenly searching an innocent passenger, are "routine operating procedures" known by passengers. Id. In its opinion, ...