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Click here for the full text of this decision FACTS:Michael “Shawn” Blansett and his relatives sued Continental Airlines, after he suffered an episode of deep vein thrombosis (DVT) on a flight from Houston to London. DVT involves the clotting of blood in the extremities and creates a threat of death or disability if a clot migrates to the lungs or other vital organs. The episode resulted in a cerebral stroke that left him permanently debilitated. The plaintiffs alleged Continental was liable for Blansett’s injury under article 17 of the Warsaw Convention, to which the United States is a signatory. Under article 17, an airline is responsible for injuries to passengers on an international flight where the injury results from an “accident.” The district court denied Continental’s motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), concluding that if Continental’s failure to provide DVT warnings and instructions was an “unreasonable deviation from industry standards,” it would be an “accident” under the Convention. The court considers Continental’s interlocutory appeal, pursuant to 28 U.S.C. 1292(b), on the issue of article 17′s proper meaning and application. HOLDING:Reverse and remand. The court concludes that Continental’s failure to provide DVT warnings and instructions could not have constituted an “accident” under Article 17. Article 17 imposes liability on an air carrier for a passenger’s death or bodily injury in connection with an international flight: “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.” The key issue, the court says, is whether Continental’s failure to provide warnings and instructions concerning DVT could have constituted a covered “accident” under Article 17. The court starts by discussing the U.S. Supreme Court’s previous decision to interpret Article 17 in light of French law (because the convention was written in French against the background of French law). France v. Saks, 470 U.S. 392, 400 (1985). In French law, “accident” is usually given to mean a “fortuitous, unexpected, unusual, or unintended event.” The convention also speaks of an “accident which caused” an injury, rather than an accident that is an injury. Accordingly, a qualifying “unusual or unexpected event” must be distinct from “the passenger’s own internal reaction to the usual, normal, and expected operation of the aircraft.” The court contrasts a case in which normal pressurization of the aircraft hull caused hearing damages to an unusually sensitive passenger, which was not found to be an “accident,” with a case in which a crew refused repeated requests to reseat an allergic passenger away from the smoking section (he later died), which was found to be an “accident.” Husain v. Olympic Airways, 124 S. Ct. 1221, 1227-30 (2004) The Fifth Circuit then considers whether certain omissions may constitute an “accident” under Article 17. The district court held that “an airline’s violation of an industry standard of care, alone, can be an”unusual or unexpected event or happening that is external to the passenger,’ . . . and thus an”accident.’” The district court thus would have left it to the jury to determine whether Continental’s failure to provide the suggested DVT warnings was an unexpected and unreasonable departure from routine industry procedure and thus necessarily an accident under the Convention. The Fifth Circuit rejects the district court’s use of an unreasonable-departure approach. It also rejects the Blansetts’ contention that Continental’s failure to give DVT warnings was an “unusual and unexpected event” because it departed from standard practice within the airline industry. Assuming for purposes of the appeal that the failure departed from standard practice and from an industry standard of care, the Fifth Circuit nonetheless says the U.S. Supreme Court has rejected a per se rule that any departure from an industry standard of care must be an “accident.” Instead, some departures from an industry standard might be qualifying accidents under Article 17, and some may not. Looking at the fact of this case, the Fifth Circuit finds that Continental’s failure to warn of DVT was not an “unusual or unexpected event” and not a qualifying “accident.” Though many international carriers in 2001 included DVT warnings, many did not. Moreover, Continental’s warnings accorded with the policies of the Federal Aviation Administration, which prescribes what warnings airlines should issue to passengers. In Witty v Delta Air Lines, Inc. , 366 F.3d 380, 385 (5th Cir. 2004), the Fifth Circuit held that the warnings reasonably required to be made by an airline are those enumerated by the FAA, and no others: “[F]ederal regulations do not require warnings to passengers about the risks of DVT or methods for preventing this condition.” The court went on to note that the balance of warnings required by the government is the product of its careful judgment, and that requiring other warnings would dilute the impact of warnings that are required by the FAA. Here, the court finds that it was not an unexpected or unusual decision for Continental merely to cleave to the exclusive list of warnings required of it by the agency that has regulatory jurisdiction over its flights. Ultimately, no jury may be permitted to find that Continental’s failure to warn of DVT constituted an “accident” under Article 17. Continental’s policy was far from unique in 2001 and was fully in accord with the expectations of the FAA. Its procedures were neither unexpected nor unusual. OPINION:Smith, J. Smith and Dennis, JJ. Lynn, district judge of the northern district of Texas, sitting by designation.

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