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When American Airlines and passenger Michael Reynolds settled a claim in 2002 that the carrier was liable for a blood clot he developed en route from New York to Paris, his condition, deep vein thrombosis (DVT), seemed poised to become a lucrative new area of litigation. But despite scores of almost identical filings, there have been no settlements since then. And two appellate court decisions this summer—including one earlier this month from the 9th U.S. Circuit Court of Appeals—cast doubt about the legal viability of a claim whose merits will be decided in San Francisco courts. The claims allege that airlines have a duty to warn passengers of the risk of developing clots from long periods of inactivity. But airline attorneys and Reynolds’ lawyer, Michael Danko of O’Reilly Collins & Danko in San Mateo, Calif., say appellate decisions in California and Texas have encouraged airlines to defend DVT cases in court, rather than begin a parade of potentially large settlements. [NLJ, June 7; Jan. 27, 2003]. “All of the airlines that we represent have taken the firm position that there is no liability and there are to be no more settlements,” said Roderick Margo, a partner in the L.A. office of Condon & Forsyth, which defended Air New Zealand in the 9th Circuit case and represents seven international carriers in DVT cases. No one disputes that being sedentary during a long flight can cause DVT. But the 9th Circuit said the clot that debilitated Adrienne Rodriguez after a flight from Los Angeles to Auckland, New Zealand, was not caused by an “accident” pursuant to the Warsaw Convention, the 1929 international travel treaty that restricts carriers’ liability to “accidents.” Rodriguez’s attorney, Clay Robbins of Los Angeles-based Maga�a, Cathcart & McCarthy, has requested a rehearing. But attorneys on both sides say the Sept. 3 ruling in Rodriguez v. Air New Zealand, No. 04 C.D.O.S. 8183, does not imperil most claims. Since Rodriguez did not provide evidence that the airline failed to warn of DVT risk, the panel’s ruling was limited to the specific facts of her case. The San Francisco courtroom of Chief U.S. District Judge Vaughn Walker will be DVT’s proving ground, since a June 4 transfer order directed almost all current and future cases there. Danko alone plans to file nearly 100 claims before Walker, arguing that failure to warn of a known risk is an “accident” under the Warsaw Convention, as it deviates from normal airline procedure. But a July ruling from the 5th Circuit said the failure to warn of DVT risk does not meet the definition of “accident” as “unexpected or unusual.” Plaintiffs’ attorneys question the decision in Blansett v. Continental Airlines, No. 03-40545, but defense lawyers say it affirms one of their key arguments: that sitting, not airline procedures, causes clots.

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