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DEMARINES v. KLM ROYAL DUTCH AIRLINES

June 28, 1977

JOHN J. DeMARINES and DORIS A. DeMARINES, husband and wife
v.
KLM ROYAL DUTCH AIRLINES



The opinion of the court was delivered by: BRODERICK

 BRODERICK, J.

 Plaintiffs, John DeMarines and his wife, Doris DeMarines, sued defendant, KLM Royal Dutch Airlines, for injuries that he alleged were proximately caused by an accident that occurred aboard a DC-8 aircraft on May 20, 1972. The case, which was based on diversity jurisdiction, was tried before a jury from October 5, 1976 to October 18, 1976. The jury returned a verdict in favor of Mr. DeMarines in the amount of $1,000,000 and in favor of Mrs. DeMarines in the amount of $50,000. *fn1" Defendant has filed motions for a new trial and for judgment n.o.v. Oral argument was had on the motions. After carefully considering all of the grounds alleged by the defendant, this Court has determined that it must deny both motions.

 Plaintiff and his wife were passengers aboard a KLM charter flight organized by the Pennsylvania Bar Association. Plaintiff claimed that an accident occurred in connection with the pressurization of the aircraft on May 20, 1972 on the portion of the flight between Zurich, Switzerland and Amsterdam, the Netherlands, and that this accident was the proximate cause of his permanent loss of equilibrium. The defendant contended at trial that an accident did not occur on the flight; that plaintiff did not suffer any permanent injury and that, if plaintiff was injured, the injury was not proximately caused by an accident occurring during the flight.

 Motions for a new trial require the exercise of discretion by the Court whose ". . . duty is essentially to see that there is no miscarriage of justice." 6A Moore's Federal Practice P 59.08[5] at 59-160; Thomas v. E. J. Korvette, Inc., 476 F.2d 471, 475 (3d Cir. 1970). The jury's verdict may be vitiated only if manifest injustice will result if it were allowed to stand. The Court may not substitute its own judgment for that of the jury merely because it may have reached a different conclusion. To grant a motion for judgment n.o.v., the Court must find as a matter of law that the plaintiff failed to adduce sufficient facts to justify the verdict, Neville Chem. Co. v. Union Carbide Corp., 422 F.2d 1205, 1210 (3d Cir.), cert. denied, 400 U.S. 826, 27 L. Ed. 2d 55, 91 S. Ct. 51 (1970). Such a motion ". . . may be granted only when, without weighing the credibility of the evidence, there can be but one reasonable conclusion as to the proper judgment." 5A Moore's Federal Practice P 50.07[2] at 2356.

 I. Sufficiency of the Evidence.

 A. Interrogatory No. 1 -- "Do you find that the plaintiff has proved by a preponderance of the evidence that there was an accident on board the aircraft on the portion of the KLM flight between Zurich and Amsterdam?"

 The defendant claims that the verdict was contrary to the weight of the evidence. In summarizing the evidence and ruling on defendant's motions, we shall view the evidence and the inferences therefrom in a light most favorable to the plaintiff, the verdict winner. Thomas v. E. J. Korvette, supra.

 Mr. DeMarines testified that he had no difficulty with pressure on the KLM flight from Philadelphia to Amsterdam on May 12, 1972 (N.T. 3-10). On the first leg of the return flight of May 20 (Zurich to Amsterdam), he suddenly felt an extreme, explosion-like pressure within his head (N.T. 3-11). He tried to form words, but could not speak, and he could hear nothing (N.T. 3-12). He described the sensation as a "stoned, completely numb feeling inside my head" (N.T. 3-14). At the same time, he saw two other passengers holding their ears in apparent pain and shaking their heads (N.T. 3-15). From Amsterdam to Philadelphia, the stoned, deep numbness feeling continued (N.T. 3-18), and that evening, on the way home, he experienced equilibrium loss -- a "floating feeling" -- which he testified continues to this day (N.T. 3-18-19).

 Seven other passengers testified that they had experienced unusually severe problems with ear pain on this portion of the flight. Judge Louis Stefan, Common Pleas Court, Montgomery County, testified that he had severe pain in his ears during the entire flight, and that he noticed other passengers experiencing similar distress and complaining to the stewardesses (N.T. 2-3). Judge Stefan also testified that upon landing at Amsterdam he complained to the flight personnel who were in the cabin of the aircraft and told them that he had never felt anything like the ear problems which he had experienced on the flight and that the problem should be corrected before the next leg of the flight (N.T. 2-4, 2-20). Judge Stefan further testified that he had flown many times on pressurized aircraft (N.T. 2-16-17), and that the pain he experienced on the flight from Zurich to Amsterdam "was as severe as anything I have ever felt and beyond, much beyond, any pressure that I had ever experienced up to that time." (N.T. 2-5). He testified that his wife also complained to him that she was suffering severe earaches on the flight (N.T. 2-13-14). Other passengers gave similar testimony as to the pain they felt in their ears on this flight and of discussions among the passengers and reports to the flight crew concerning the problem. *fn2" Betty McWilliams, also a passenger, testified that she heard a flight steward tell a passenger to whom he was administering oxygen that "it was a wonder that other people hadn't complained because they were having a problem with the air pressure." (N.T. 1-85-86).

 In defense, KLM called eight passengers on the flight. *fn3" They testified that they felt no pain or discomfort in their ears during the flight and that they did not hear any complaints by fellow passengers. *fn4" Defendant also called members of the flight crew who testified that there was no malfunction of the pressurization system and that nothing abnormal or unusual occurred on the flight in connection with the pressurization (N.T. 7-96, 8-22-26, 8-61, 8-122).

 At trial, the parties agreed that the flight in question was an international flight with its destination in the United States, that plaintiffs were passengers on the flight, and that liability was governed by the terms of the Warsaw Convention, *fn5" as modified by the Montreal Agreement. *fn6" The Warsaw Convention is a treaty which applies to all international air transportation. Block v. Compagnie Nationale Air France, 386 F.2d 323 (5th Cir. 1967), cert. denied, 392 U.S. 905, 20 L. Ed. 2d 1363, 88 S. Ct. 2053 (1968); Husserl v. Swiss Air Transport, Ltd., 351 F. Supp. 702, 705 (S.D. N.Y. 1972), aff'd 485 F.2d 1240 (2d Cir. 1973). The pertinent section which delineates a carrier's liability to a passenger is Article 17, which provides:

 
The carrier shall be liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a 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.

 As originally drafted, the Convention included the defenses of due care (Article 20(1)) and contributory negligence (Article 21) and set a limitation of liability to passengers of 125,000 francs, then the equivalent of $8,000 (Article 22(1)). Attempts to modify the low limit of liability led to a diplomatic conference at The Hague in 1955, at which time the Convention was amended to increase liability to the equivalent of $16,000. The United States, which was still dissatisfied with the low liability limitation, did not ratify The Hague Protocol. In November 1965, the United States exercised its power under Article 39 and denounced the Convention. On the eve of the effective date of the denunciation an interim agreement, known as the Montreal Agreement, was reached. This agreement provides for a limit of liability of $75,000, and also provides that the carrier shall not assert the defense of due care provided in Article 20(1).

 The effect of Article 17 of the Convention as modified by the Montreal Agreement is to create liability regardless of fault or negligence on the part of the carrier; *fn7" McDonald v. Air Canada, 439 F.2d 1402 (1st Cir. 1971); Noel v. Linea Aeropostal Venezolana, 247 F.2d 677 (2d Cir. 1957). Plaintiff must prove only the happening of an "accident" and damages proximately caused. Husserl v. Swiss Air Transport Company, Ltd., 388 F. Supp. 1238, 1242, n. 4 (S.D. N.Y. 1975). The term "accident" is not defined by the Warsaw Convention. Neither party has called to our attention any reported case in which a plaintiff has claimed that an "accident" aboard the aircraft caused him to suffer ear damage. *fn8" One of the few cases which has discussed the meaning of an "accident" under the terms of the Warsaw Convention is McDonald v. Air Canada, supra. In the McDonald case plaintiff fell while standing in the baggage claim area of the terminal after a transatlantic flight and the Court held that such facts did not establish the happening of an accident within the terms of the Warsaw Convention. The Court said:

 
We see no basis for finding an accident, the first requirement for invocation of the Convention. Plaintiff did show that there were bags in her vicinity when she fell. However, even if the jury could have found that the bags were so close that when she fell she fell over one of them, it would be speculation to say that it was the bag which caused the fall. The area was well lighted. Plaintiff fell forward, and any bag in front of her must have been clearly evident. More important, she was not going anywhere, and there is no reason to think she was proceeding across the floor. The burden was on plaintiff to prove there was an accident. On the facts established it seems as reasonable to suppose that some internal condition was the cause of the fall as that the fall was the result of an accident. Id. at 1404-05.

 In this case, unlike the McDonald case, the plaintiff did produce evidence from which the jury could find that there was an accident aboard the aircraft.

 In contexts other than the Warsaw Convention, "accident" has been defined as an unexpected and sudden event that takes place without foresight. *fn9" Ketona-Chemical Corp. v. Globe Indem. Co., 404 F.2d 181, 185 (5th Cir. 1969); Koehring Company v. American Automobile Insurance Co., 353 F.2d 993, 996 (1965); Casper v. American Guarantee & Liability Ins. Co., 408 Pa. 426, 184 A. 2d 247, 249 (1962). The Court charged the jury on the meaning of an accident as follows:

 
An accident is an event, a physical circumstance, which unexpectedly takes place not according to the usual course of things. If the event on board an airplane is an ordinary, expected, and usual occurrence, then it cannot be termed an accident. To constitute an accident, the occurrence on board the aircraft must be unusual or unexpected, an unusual or unexpected happening.
 
The event or occurrence is not an accident if it results solely from the state of health of the passenger and is unconnected with the flight. . . . The plaintiff does not have the burden of proving and does not have to prove what caused the accident or how it occurred or why it occurred.
 
Now in this case the explosion in his head which the plaintiff testified he experienced is what he claims to have been caused by an accident on the flight. The accident claimed by plaintiff is that something happened in connection with the pressure inside the cabin of that aircraft. (N.T. 10-17, 18).

 Although defendant contends that the plaintiff produced no testimony that the pressure inside the aircraft was unusual or unexpected, the thrust of defendant's argument is that by failing to produce expert testimony concerning the pressurization on the aircraft the plaintiff failed to prove the occurrence of an accident. Expert testimony is warranted where facts are such that lay persons are likely to be unable to form a correct judgment without expert assistance. United Telecomm. Inc. v. American Tel. & Comm. Corp., 536 F.2d 1310, 1317 (10th Cir. 1976); Foster v. Borough of Glenolden, 47 F.R.D. 276, 278 (F.D. Pa. 1969), F.R. Evid. ยง 702. On the other hand, expert testimony is not necessary where the jury could pass judgment without assistance from persons possessing specialized knowledge on the subject. Webb v. Fuller Brush Company, 378 F.2d 500 (3d Cir. 1967). It is undisputed that plaintiff could have offered expert testimony to explain the pressurization on the aircraft. However, we do not believe that the failure to present such evidence was fatal to plaintiffs' case. The jury's task was to determine whether the plaintiff proved by a preponderance of the evidence that an accident -- something abnormal or unexpected -- occurred on board the aircraft. Plaintiff testified that he felt an explosion-like pressure in his head. He produced evidence that seven other passengers had experienced unusually severe problems with ear pain on the flight and that several of these passengers complained to the flight crew and remembered discussions among other passengers concerning ear pain. As heretofore pointed out, one of the passengers, Judge Stefan, testified that he had flown many times on pressurized aircraft but that the pain in the ear he experienced on this flight was much beyond any pressure that he had experienced up to that time. Mrs. McWilliams, another passenger who testified for the plaintiff, recalled that she had heard a flight steward tell a passenger to whom he was administering oxygen that "it was a wonder that other people hadn't complained because they were having a problem with the air pressure." There was no burden on plaintiff to prove the cause of the accident or any negligence on defendant's part. We therefore find that the evidence presented by the plaintiff was amply sufficient for the jury to answer the following question in the affirmative: "Do you find that the plaintiff has proved by a preponderance of the evidence that there was an accident on board the aircraft on May 20, 1972 on the portion of the KLM flight between Zurich and Amsterdam?"

 B. Interrogatory No. 2 -- "Has the plaintiff proved by a preponderance of the evidence that he sustained injury proximately caused by the accident?"

 Defendant contends that there was no competent testimony that plaintiff's injuries were proximately caused by an accident in connection with the pressurization of the aircraft. Dr. Bernard Ronis, an otolaryngologist (ear, nose and throat), testified that in his opinion the plaintiff was suffering from labyrinthosis, which is a dysfunction of the inner ear (N.T. 5-33). Various causes for plaintiff's equilibrium loss, such as a stroke (N.T. 2-74), a neurological disorder (N.T. 5-108-109, 111) and pre-existing medical conditions (N.T. 5-29, 5-31, 5-126) were ruled out by him and plaintiff's treating doctor, Dr. Miraldo. Dr. Ronis explained that he used the term "decompression" to mean the change which takes place in the cabin of an airplane while descending (N.T. 5-81).

 Dr. Ronis was asked the following questions and gave the following answers:

 
A From the history that I elicited, I would state that the symptoms that he developed afterward, that have persisted since then, have been the result of this rapid decompression affecting his --
 
Q Exactly what is the condition that this gentleman suffers from and what can be done to correct it?
 
A He has a disorder termed labyrinthosis, which is a dysfunction or abnormal action of the inner ...

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