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Lawyers have dubbed it “economy-class syndrome,” and it’s landed the airline industry in the middle of a legal morass. Airlines have been hit with a growing number of lawsuits alleging that sitting in cramped airline seats for a long time can cause potentially deadly blood clots. Litigation involving the malady, known as deep vein thromobosis, or DVT, has seen four major developments: � American Airlines settled a case under a confidentiality agreement in Texas, the first time any U.S. airline has done so. Reynolds v. American Airlines, No. 48-195414-02 (N.D. Texas). � A judge in Galveston, Texas, agreed in Blansett v. Continental Airlines, No. G-02-061 (S.D. Texas) to let another suit go forward, another first in the United States. � A judge in Australia cleared the way for a Sydney businessman to proceed with a suit against Qantas and British Airways in Povey v. Civil Aviation Safety Authority and Others, No. 7223 (Victoria Sup. Ct.). � London’s High Court blocked an effort by more than 50 plaintiffs to sue about two dozen airlines over DVT. The Deep Vein Thrombosis and Air Travel Group Litigation, No. HQ01X04522 (High Court Justice Queens Bench Div.). WHY ALL THE ACTION “It’s become pretty clear that the medical community now is coming to grips with what the airlines have known all along — which is that with any long-haul flight, six hours or longer, your chances of developing DVT increase astronomically,” says attorney Mike Danko, the plaintiffs’ lawyer who handled the recent, undisclosed settlement with American Airlines. For medical backup, Danko cites a Sept. 13, 2001, article in the New England Journal of Medicine in which researchers conclude that “a greater distance traveled is a significant contributing risk factor for pulmonary embolism associated with air travel.” He also cites a statistic by www.airhealth.org, a group of medical and legal experts who claim that of the 2 million people treated annually for DVT, 1 million cases are caused by air travel. “Now people who are stricken will go to their lawyers and they will be filing lawsuits, rather than letting the cases go,” says Danko of O’Reilly, Collins & Danko in San Mateo, Calif. “I do think that there will be many, many, many more cases.” LANDMARK SETTLEMENT On Dec. 9, American Airlines made legal history by becoming the first airline to agree to settle a DVT lawsuit. That settlement — for an undisclosed amount — was reached under a confidentiality agreement, keeping the dollar amount private. American Airlines spokeswoman Andrea Rayden would not comment on the case beyond confirming that a settlement had been reached. According to Danko, the case involves a man named Mike Reynolds who was traveling from New York to Paris in 2001 when on arrival he developed some pain in his calf. It turned out to be a DVT, he said. Reynolds was treated in France, returned to the United States and has since had a good recovery. Danko, whose firm is handling 11 other DVT lawsuits, said most of the actions involve the same claims. “As with almost all of [the DVT cases] that we’re handling, the claims in [Reynolds'] case were that the DVT was caused by the long-haul flight, and that the airline was responsible under the Warsaw Convention.” The principal legal issue surrounding all these cases is the 1929 Warsaw Convention, which governs international travel and holds airlines liable for damages in the case of an accident. In a ruling that boosted the airline industry, a 1985 U.S. Supreme Court decision said airlines are not liable under the rules of the Warsaw Convention for accidents that cause unexpected or unusual injuries resulting from “the passenger’s own internal reaction to the usual, normal and expected operation of the aircraft.” So, the issue at hand is: Do blood clots qualify as an accident? The airlines say absolutely not, that DVTs occur because of immobility, not because of flying. “I think you should no more expect your airline to assess your health than you would expect your doctor to anticipate turbulence,” says attorney Rachel Clingman, who is representing Continental Airlines in the DVT suit in Galveston. In that case, Shawn Blansett, an executive for a chemical company in his mid-30s, claims he suffered a stroke on board a Continental Airline’s plane while traveling from Houston to London on June 18, 2001. According to his attorney, Truitt Akin, Blansett stood up after sitting for a long period of time and collapsed. A father of two who once earned a six-figure income, Blansett is unable to walk, has slurred speech and cannot return to work, he said. “One of our main arguments was their failure to warn [of DVTs] or advise certain exercises,” says Akin of the Law Office of Craig Eiland in Houston. He adds that the plaintiff’s family “just want change. “They felt like if they were warned or informed of this that he wouldn’t have just been sitting or sleeping. He might have stretched. They’re hoping that this could prevent a similar happening to someone else down the line.” Continental denies any wrongdoing. “The airline denies that there was an accident,” says Clingman of Fulbright & Jaworski’s Houston office. Furthermore, Clingman argues, the plaintiff’s failure-to-warn claim is a negligence issue, and negligence principles are not applicable under the Warsaw Convention. “It is our position that the text of the convention does not incorporate negligence. And that’s what the plaintiffs are relying on here,” Clingman says. But the courts, thus far, have sided with Blansett. On Dec. 11, a federal district judge in Galveston ruled that the airline’s failure to warn could cause an accident under the Warsaw Convention. “It’s the first opinion internationally that has upheld the failure to warn of DVT,” says Akin. “We’ve gotten calls from attorneys worldwide on this.” Akin believes a factor that influenced the judge’s decision was presenting the judge with a Feb. 8, 2001, press release issued by the International Air Transport Association. That press release stated: “At the time of reservations, travelers should be informed of the risks of DVT and encouraged to seek medical advice if they have certain risk factors. In addition, prior to boarding and again on board passengers should be encouraged to take certain precautionary measures, such as drinking non alcoholic fluids, wearing loose clothing and performing exercises in their seats to avoid developing DVT.” Akin says the judge ended up citing this press release in his ruling. Meanwhile, as Akin prepares his case for trial, he readily admits that the outcome of his case and others will be tough to call. “It all boils down to this 1929 treaty written in French, and a handful of Supreme Court opinions interpreting what the original French draft meant,” Akin says. “It’s a messy treaty, unfortunately.” AN INTERNATIONAL TWIST Ten days after the big ruling in Texas, two significant DVT judgments were issued on opposite ends of the globe: one in Australia, the other in Great Britain. The rulings turned legal heads here and abroad as the judges in each country made starkly different decisions. In England, the Honorable Mr. Justice Nelson ruled that blood clots did not constitute an “accident” under the Warsaw Convention, and that the claimants had no separate remedy under the Human Rights Act. In his ruling, Nelson wrote: “DVT cannot be regarded as anything other than a serious personal injury, leading as unhappily on occasions it does, to death.” But the judge in Australia went the other way. Justice Bernard Bongiorno of the Supreme Court of Victoria in Melbourne, rejected the airlines’ argument that blood clots could not be classified as accidents and gave the airlines until February to appeal. “It’s about as much a split as you can have, on two different sides of the world,” says Danko, adding that no real precedent can be set in DVT cases because of the complexity of the Warsaw Convention. “All the different courts are interpreting the same language. “It is a bit of a twist. No one is bound by anyone else’s precedent. Some of the courts are now sort of recognizing that, and saying the convention needs to be interpreted liberally, flexibly and not rigidly.” Danko says because no one is certain as to how courts will interpret the Warsaw Convention, the current DVT cases are all test cases whose outcomes remain in question. Other DVT cases before U.S. courts include former Marine Frank Shumaker’s suit against United Airlines in Santa Ana, Calif. Shumaker v. UAL Corp., No. SACV02837 (C.D. Calif.). According to Danko, Shumaker died from a blood clot in Hong Kong after deplaning. He was on a flight from Los Angeles to Hong Kong on Sept. 7, 2001, and died at the airport upon arrival, he said. The defense lawyer for United Airlines, Jeffrey Worthe of Ferruzzo & Worth in Newport Beach, Calif., did not return calls seeking comment. MARATHON RUNNER Danko is also handling a DVT case against Continental Airlines and Air France involving a 37-year-old woman who flew to Paris to run a marathon, then suffered a DVT two weeks later while vacationing in Napa Valley, Calif. Danko said the woman, Debra Miller, ran the marathon, returned home and went on a vacation in Napa Valley, where she collapsed in a street while out getting coffee on April 12, 2001. Danko said that at the hospital, the doctor asked the woman’s husband, “Has your wife been on any long-haul flights recently?” Danko asserted that “[a]fter about twenty minutes they were able to save her and they removed the clot.” Attorney Charles Coleman III of Holland & Knight’s San Francisco office, who is representing Air France in that case, declined comment. Kimberly Spear of Livingston Tate in Walnut Creek, Calif., who is representing Continental, did not return calls seeking comment.

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