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Judith Schaefer-Condulmari v. Us Airways Group

July 17, 2012

JUDITH SCHAEFER-CONDULMARI
v.
US AIRWAYS GROUP, LLC



The opinion of the court was delivered by: McLaughlin, J.

MEMORANDUM

The plaintiff brings this suit after suffering an allergic reaction to a meal served aboard the defendant's airline. As a result of the allergic reaction, the plaintiff alleges physical and mental injuries, including post-traumatic stress disorder ("PTSD"). Currently before the Court are four motions filed by the defendant. The Court will deny the defendant's motion for summary judgment; grant in part and deny in part the defendant's Daubert motion; grant the defendant's motion to strike; and grant in part and deny in part the defendant's motion to compel.

I. Summary Judgment Record

The plaintiff is allergic to gluten. Pl. Br., Ex. A (Pl. Dep.) at 30-32. On September 9, 2008, the plaintiff was traveling on the defendant's airline from Rome, Italy to Philadelphia, Pennsylvania. Def. Stmt. of Undisputed Fact ¶ 2; Pl. Resp. Stmt. ¶ 2. She was served a meal containing gluten while on board. Def. Stmt. ¶ 6; Pl.'s Resp. Stmt. ¶ 6.

After taking a few bites of the meal, the plaintiff suffered an allergic reaction, developed hives and experienced difficulty breathing. Pl. Br., Ex. D at 87. Eventually the plaintiff was brought to the back of the plane where a flight attendant and a nurse on board the flight attended to her, injuring her leg in the process. Id. at 106-07.

The parties dispute whether the plaintiff ordered a gluten-free meal for the September 9, 2008 flight. The booking record for the September 9, 2008 flight shows that a vegetarian meal was ordered. Def. Br., Ex. D. The plaintiff was served a vegetarian meal on board the flight. Def. Br., Ex. E, 27-28.

The plaintiff argues that the booking record is mistaken. Since 1977, the plaintiff has "always" ordered a gluten-free, wheat-free meal when she travels. Id. at 30-32. Although the plaintiff could not remember if she booked this flight, the booking record for the September 9, 2008 flight shows that the plaintiff booked the flight. Def. Br., Ex. A at 45-46; Pl. Supp. Br., Ex. A at 59. Booking records from 2007 through 2009 show that the plaintiff usually ordered a gluten-free meal when she ordered a meal from the defendant. Def. Supp. Br. at 8-9. In addition, the plaintiff informed Linda Fischer, a flight attendant on board the flight, that she needed a gluten-free meal.*fn1 Def. Br., Ex. E at 26-28; Pl. Supp. Br., Ex. H at 118.

II. Motion for Summary Judgment*fn2

The plaintiff's claims are governed by the Convention for the Unification of Certain Rules for International Carriage by Air ("the Montreal Convention").*fn3 See Montreal Convention, May 28, 1999, ICAO Doc. 9740, S. Treaty Doc. No. 106-45, 1999 WL 33292734 (2000).

The defendant argues that serving the plaintiff a vegetarian meal was not an "accident" as required by the Convention to support a claim of liability, because she ordered a vegetarian meal. In addition, the defendant argues that it is entitled to summary judgment on the plaintiff's claims of post-traumatic stress disorder ("PTSD"), because the Convention does not provide for recovery of mental injuries.

A. Accidents Under the Montreal Convention Chapter III, Article 17 of the Montreal Convention says:

The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.

Montreal Convention Art. 17 (emphasis added).*fn4 The Montreal Convention, like its predecessor, does not define the term "accident."

The Supreme Court defined the term accident in Air France v. Saks. 470 U.S. 392, 394-95 (1985). In Saks, a passenger alleged that she suffered a hearing loss following the plane's normal descent to its destination. Because the treaty requires that an accident cause the alleged injury, the Court concluded that liability "arises only if a passenger's injury is caused by an unexpected or unusual event or happening that is external to the passenger." Id. at 405. This definition of an accident "should be flexibly applied after assessment of all the circumstances surrounding a passenger's injuries." Id. "Any injury is the product of a chain of causes, and we require only that the passenger be able to prove that some link in the chain was an unusual or unexpected event external to the passenger." Id. at 406.

In 2004, the Court reaffirmed its holding in Saks. Olympic Airways v. Husain, 540 U.S. 644, 653-54 (2004). In Husain, the Court held that a flight attendant's refusal to help an asthmatic passenger avoid exposure to cigarette smoke in the cabin qualified as an accident. The Court held that an accident had occurred because "the carrier's unusual and unexpected refusal to assist a passenger [by moving his seat] is a link in a chain of causation resulting in a ...


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