Sunday, March 14, 2004

The Warsaw Convention and Deep-Vein Thrombosis

Passengers on long airline flights sometimes develop deep-vein thrombosis ("DVT") -- a serious and potentially fatal condition resulting from the formation of blood clots in the legs. The condition is not rare. A study in The Lancet has put the incidence level at 1 per cent of low- to medium-risk passengers who fly ten or more hours over a period of six weeks. A recent International Herald Tribune article reports that roughly 200 airline passengers who developed the condition have sued the airlines for failure to warn of the risk or advise passengers of measures they might take to reduce it (e.g., wearing loose clothing, moving around the cabin, performing simple leg exercises in their seats, remaining well hydrated, avoiding alcohol consumption, and taking anti-clotting medications).

According to a Reuters story, some lawyers are now saying that the Supreme Court breathed new life into such lawsuits in its February 24 decision in Olympic Airways v. Husain, 157 L. Ed. 2d 1146 (2004).

Is that true?

The plaintiff in Olympic Airways was an asthmatic seated three rows from the smoking section on an international flight. He died from reactions to second-hand smoke after airline attendants refused to move him to another seat. The Warsaw Convention makes the airlines liable for "accidents" occurring on international flights. Was this passenger's death an "accident"? In Air France v. Saks, 470 U.S. 392 (1985), the Supreme Court held that under the Convention, an "accident" must involve some "unexpected or unusual event or happening that is external to the passenger," and not merely "the passenger’s own internal reaction to the usual, normal, and expected operation of the aircraft." The defendant airline in Olympic Airways argued that the passenger's adverse reaction to the second-hand smoke failed to satisfy this definition. But the Court held that liability could be imposed if the definition was satisfied by any event in the causal chain culminating in the injury, including not only affirmative acts by the airline but also failures to act. The airline's refusal to move the passenger met that condition, even though his death also resulted from the passenger's "internal" asthmatic reaction.

The refusal to move the distressed passenger in Olympic Airways could plausibly be characterized as an "unexpected or unusual" event. Can the same be said for the failure to counsel passengers about DVT? Certainly in-flight warnings about DVT have not been customary. But what is expected and usual by way of such warnings might not be governed entirely by current practices involving in-flight, DVT-specific admonitions. The airlines have long been in the business of offering safety advice more generally -- e.g., in that familiar speech from the flight attendant at departure. And some airlines have begun offering specific DVT warnings in other forums. Here, for instance, is a United Airlines web page in which the airline's corporate medical director suggests that "all travelers" should be aware of the issue, going on to boast that the carrier "always takes the extra step to provide customers and employees with added medical safety and service." Warnings can also be found, e.g., at the sites for American, China Airlines, Delta, Singapore Air, and Swissair, among numerous others. We couldn't find anything on DVT at the sites for Alaska/Horizon, America West, Frontier, Hawaiian (which does cover how to transport your bowling ball), Jet Blue, Midwest, Southwest, or US Airways.

Would offering in-flight warnings be more difficult than posting them on the internet? Let's get real. Continental and Northwest both have web pages with highly legible graphics depicting potentially prophylactic exercises, and they look as though they'd fit splendidly into that little laminated fold-out safety card in the seat pocket in front of you. (Query to our readers who fly Continental and Northwest: Are they already there?) If such warnings are not more routinely issued on the plane, the reason, we suspect, has little to do with issues of impractibility, and a lot to do with the airlines' resistance to advising passengers to get up and walk around.
Fed. R. Evid. 702: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.