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Doe v. Etihad Airways, P.J.S.C.

United States Court of Appeals, Sixth Circuit

August 30, 2017

Jane Doe; John Doe, husband and wife, Plaintiffs-Appellants,
Etihad Airways, P.J.S.C., Defendant-Appellee.

          Argued: October 19, 2016

         Appeal from the United States District Court for the Eastern District of Michigan at Ann Arbor. No. 5:13-cv-14358-John Corbett O'Meara, District Judge.


          Mark Kelley Schwartz, DRIGGERS, SCHULTZ & HERBST, P.C., Troy, Michigan, for Appellants.

          Andrew J. Harakas, CLYDE & CO U.S. LLP, New York, New York, for Appellee.

         ON BRIEF:

          Mark Kelley Schwartz, DRIGGERS, SCHULTZ & HERBST, P.C., Troy, Michigan, for Appellants.

          Andrew J. Harakas, Daniel E. Correll, CLYDE & CO U.S. LLP, New York, New York, Scott R. Torpey, JAFFE RAITT HEUER & WEISS, Southfield, Michigan, for Appellee.

          Before: BOGGS, SUHRHEINRICH, and McKEAGUE, Circuit Judges.


          BOGGS, Circuit Judge.

         Plaintiff Jane Doe and her eleven-year-old daughter flew aboard Etihad Airways from Abu Dhabi to Chicago. For the duration of the fourteen-hour journey, Doe's tray table remained open in her lap because a knob that was meant to hold it in place had fallen to the floor. During the flight, Doe's daughter found the knob on the floor and gave it to Doe, who placed it in a seatback pocket. When it came time to descend, an Etihad flight attendant (unaware of the detached knob) gave Doe the familiar reminder to place her tray table in the upright and locked position for landing. Doe, of course, could not comply. To aid in explaining her problem, she reached into the seatback pocket to retrieve the fallen knob. But when she stuck her hand into the pocket, she was unexpectedly pricked by a hypodermic needle that lay hidden within. She gasped, and the needle drew blood from her finger.

         Doe claims damages from Etihad for both her physical injury and her "mental distress, shock, mortification, sickness and illness, outrage and embarrassment from natural sequela of possible exposure to" various diseases. Her husband claims loss of consortium. The Montreal Convention of 1999, an international treaty under which these claims arise, imposes strict liability (up to a monetary cap) upon Etihad "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." Etihad concedes that an accident onboard its aircraft caused Doe to suffer a bodily injury. But Etihad argues that "damage sustained in case of . . . bodily injury" means only "damage caused by bodily injury, " and thus does not include Doe's fear of contagion and other emotional-distress and mental-anguish damages-damages that Etihad claims were caused not by Doe's bodily injury (the small hole in her finger) but by the nature of the instrumentality of that injury (the needle). The district court agreed and granted partial summary judgment for Etihad. But the district court erred both in reading the additional "caused by" requirement into the treaty and in concluding that Doe's bodily injury didn't cause her emotional and mental injuries. The plain text of the Montreal Convention allows Doe to recover all her "damage sustained" from the incident, which includes damages for both physical injury and accompanying emotional or mental harm. So, for the reasons that follow, we reverse and remand.


         When Doe was pricked by the needle, the passenger seated in the aisle seat to her right heard Doe exclaim, "ouch, " and saw her finger bleeding. The Etihad flight attendant who had come to Doe's seat picked up the needle and what was later determined to be its accompanying insulin syringe, both of which Doe had placed on her tray table. But the flight attendant then returned the items to the tray table and left to summon the assistance of her supervisor. Because the airplane had begun its descent, the flight attendants did not have access to the flight deck, which was where the only onboard sharps box was located, nor were the flight attendants permitted to call the flight deck absent a more pressing emergency.

         The flight attendant returned with her supervisor. The flight attendant took the needle and syringe, placed them in an empty water bottle, capped the bottle, and later turned the bottle over to her cabin manager. The supervisor, meanwhile, gave Doe an antiseptic wipe, which Doe used to wipe her finger, and a Band-Aid, which the supervisor himself wrapped around her finger. The cabin manager wrote a report of the incident and told Doe that Etihad would contact her. A flight attendant recommended that Doe see a doctor, but Etihad provided no medical assistance other than the antiseptic wipe and Band-Aid.

         The next day, Doe saw a family physician, who noted a "small needle poke" on Doe's finger. Doe was prescribed medication for possible exposure to hepatitis, tetanus, and HIV, and she underwent several rounds of testing over the following year. Thankfully for Doe, all the tests came back negative. Nevertheless, Doe claims that she refrained from sexual intercourse with her husband and from sharing food with her daughter until one year after the incident, when her doctor told her that she could be certain that she had not contracted a disease from the needlestick.

         Two days after the flight, Doe sent an email to Etihad to follow up because Etihad had neither sent her a copy of the incident report nor offered her any further assistance. One week later, Etihad replied by email to offer a "purely goodwill gesture" of "possible reimbursement" of Doe's medical expenses, "without any admission of liability." This litigation followed.


         Plaintiffs filed suit against Etihad in the United States District Court for the Eastern District of Michigan.[1] Etihad, an entity wholly owned by the Government of Abu Dhabi, United Arab Emirates, is a "foreign state" within the meaning of the Foreign Sovereign Immunities Act, 28 U.S.C. § 1603(a). But as a condition of Etihad's Foreign Air Carrier Permit-issued by the United States Department of Transportation to permit Etihad to fly to United States airports- Etihad waived sovereign immunity from suit in United States courts and could thus be sued "in any judicial district in which [Etihad] is licensed to do business or is doing business, " which includes the Eastern District of Michigan because of Etihad's codeshare and other business agreements with airlines operating from points within that district. 28 U.S.C. § 1391(f); see 49 U.S.C. § 41301.[2]

         Following discovery, Etihad moved for, and the district court granted, partial summary judgment in favor of Etihad as to Doe's claims for mental-anguish and emotional-distress damages, including fear of contagion. (For simplicity, we will refer to these various claims collectively as Doe's claims for mental anguish.[3]) The partial-summary-judgment order also dismissed Doe's husband's derivative claim for loss of consortium. Doe declined to pursue a lost-earnings claim that she had pleaded in her complaint, leaving only her claim for the physical pain, suffering, and medical expenses caused by the needlestick, which the parties stipulated to be de minimis relative to the dismissed claims. (These de minimis damages include the physical pain and suffering from being pricked by the needle: the small hole in Doe's finger and the "ouch, " so to speak. But they do not include any mental anguish arising from the fact that it was a stray needle and not, for example, a sterilized toothpick, that pricked Doe's finger. The logic behind this distinction is that if something like a sterilized toothpick had caused Doe's bodily injury, then Doe would not have had any reasonable fear of contagion, so Doe's fear of contagion must arise from the fact that it was a needle that caused her injury, rather than arising from the injury itself, and Doe's fear of contagion is therefore not recoverable as "damage sustained in case of bodily injury" under the Montreal Convention. This logic is faulty, of course, because Doe's injury was an injury caused by a needle and was not the same as the injury that a sterilized toothpick would have caused, even if arguably similar. We will discuss this more fully in Section III.A, infra.) The parties reached a settlement as to these de minimis damages, and the parties agreed to a "Stipulation and Order of Dismissal with Prejudice, " so that Plaintiffs could immediately appeal the district court's partial-summary-judgment order.

         We first discuss, in Section III, whether the district court erred in holding that Doe's mental-anguish damages were not recoverable under Article 17(1) of the Montreal Convention, and-after analyzing both the plain text of the treaty and relevant persuasive authorities-we conclude that the district court did so err. Then, in Section IV, because the Montreal Convention provides rules for liability but looks to local law for the measure of damages, we conduct a choice-of-law analysis and hold that Michigan damages law governs both the amount of any damages Etihad comes to owe Doe and the ability of Doe's husband to recover loss-of-consortium damages.


         The parties agree that Article 17(1) of the Montreal Convention, a multilateral treaty to which the United States is a signatory, provides Plaintiffs' only avenue for recovery against Etihad. See Convention for the Unification of Certain Rules for International Carriage by Air, art. 17, May 28, 1999, S. Treaty Doc. 106-45, ICAO Doc. No. 9740, 1999 WL 33292734 (entered into force Nov. 4, 2003) (Montreal Convention). More than 125 countries, including the United Arab Emirates, have signed, ratified, or acceded to the Montreal Convention since 1999.

         The interpretation of a treaty is a question of law that we review de novo. United States v. Page, 232 F.3d 536, 540 (6th Cir. 2000). Under the Supremacy Clause, treaties are "the supreme Law of the Land." U.S. Const. art. VI, cl. 2. Neither our court nor the Supreme Court has yet interpreted any provision of the Montreal Convention. The Warsaw Convention (the Montreal Convention's longstanding predecessor treaty), however, has been the subject of much litigation over the past eighty years, and interpretations of the Warsaw Convention have at least some persuasive value in interpreting parallel provisions of the Montreal Convention.[4] See Convention for the Unification of Certain Rules Relating to International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, T.S. 876, 137 L.N.T.S. 11 (Warsaw Convention); In re Air Crash at Lexington, Ky., 501 F.Supp.2d 902, 907-08 (E.D. Ky. 2007) (noting that "the 'common law' of the Warsaw jurisprudence is vitally important to understanding the meaning of the Montreal Convention") (quoting Baah v. Virgin Atl. Airways, 473 F.Supp.2d 591, 596 n.7 (S.D.N.Y. 2007)); see also, e.g., Zicherman v. Korean Air Lines Co., 516 U.S. 217 (1996) (interpreting Warsaw Convention Article 17), Eastern Airlines, Inc. v. Floyd, 499 U.S. 530 (1991) (same), Air France v. Saks, 470 U.S. 392 (1985) (same). As with the Montreal Convention, the Warsaw Convention provided international air passengers' exclusive remedy for claims governed by that treaty. See, e.g., El Al Isr. Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 168-69 (1999) (holding that the Warsaw Convention provided the sole remedy for personal-injury claims arising from injuries sustained during international air travel, even if the injured party could not state a claim for relief under the Warsaw Convention, in which case no remedy was available at all).

         A. Textual Analysis

         Our analysis of Article 17(1) of the Montreal Convention "must begin . . . with the text of the treaty and the context in which [its] written words are used." Saks, 470 U.S. at 397 (citing Maximov v. United States, 373 U.S. 49, 53-54 (1963)). The text of Article 17(1) provides:

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(1).

         1. Etihad's Argument

         The contested language here is "in case of." Etihad's argument has two components: its understanding of what "in case of" means, and its application of that understanding to the facts of this case.

         First, Etihad argues that "in case of" means "caused by, " Appellee's Br. 4, or perhaps "caused directly by, " see id. at 21. If we impose Etihad's reading of Article 17(1) back onto the text of the treaty, Etihad is then "liable for damage sustained [caused directly by] 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 . . . ." Thus, according to Etihad, in order for Doe to recover for her mental anguish under Article 17(1), Doe would have to prove that (1) an "accident" caused her "bodily injury" on board an aircraft and (2) her "bodily injury" (i.e. the small hole in her finger) directly caused her "damage sustained" (i.e., her mental anguish).

         Second, Etihad concedes that an accident caused Doe to suffer a bodily injury on board its aircraft, but Etihad argues that Doe's bodily injury did not directly cause her mental anguish: according to Etihad, Doe's anguish was caused not by her "bodily injury" (i.e., the needlestick, [5]the physical puncture wound) but rather by the "accident" that caused the injury (i.e., being stuck by a needle, as opposed to being stuck by something else). Order Granting Def.'s Mot. for Partial Summ. J. 4 (emphasis added) (citations omitted) ("Plaintiff's mental distress damages were not caused by her physical injury. It is not the physical needle prick itself that caused Plaintiff's distress, but the possibility that she may have been exposed to an infectious disease."); see Appellee's Br. 17 ("[Doe's] mental anguish damages arise from the nature of the accident itself and were not caused by the bodily injury"), id. at 20 ("because the plaintiffs' mental injuries were caused by the 'accident' itself and not the 'bodily injuries' sustained in the accident, there could be no recovery under the Convention").

         A simple diagram helps to illustrate Etihad's curious understanding:

         (IMAGE OMITTED)

         As this diagram indicates, according to Etihad, mental anguish caused directly by the bodily injury is recoverable, but mental anguish that merely accompanies the bodily injury, and which is instead caused more generally by the accident, is not recoverable.

         2. Plain Meaning of the Text

         But "in case of does not mean "caused by."

         Rather, the plain meaning of "in case of is "if there is" or "in the event of or "during a case in which there is." The Oxford English Dictionary, for example, defines "in case" (as a conjunction) as, "In the event that; if it should happen that; if, " and defines "in case of (as an adverb) as "in the event of (esp. something untoward). Now frequently in in case of emergency.'" In case, Oxford English Dictionary, (last visited Aug. 29, 2017). The Canadian Oxford Dictionary has similar definitions and is a seemingly apt dictionary for identifying the contemporaneous meaning of terms in the Montreal Convention, given that the dictionary was first published in 1998 and then updated in 2004, while the treaty was signed in 1999 (in Canada) and entered into force in 2003. See Case, The Canadian Oxford Dictionary (2d ed. 2004), 0?rskey=8fa6U0&result=11001 (defining "in case" as "in the event that; if, " and defining "in case of" as "in the event of").

         Clearly, the plain meaning of "in case of" is conditional, not causal. To say in case of X, do Y is to say "if X happens, then do Y"-none of which means that there is a causal relationship between X and Y-just as to say in case of a compensable bodily injury, the passenger may recover damage sustained is to say "if there is a compensable bodily injury, the passenger may recover damage sustained." But to adopt Etihad's meaning of "in case of, " we would impose an additional causal restriction onto the text of Article 17(1) that the plain text does not contemplate. Indeed, imposing such an additional causal restriction would contradict the plain text, which states that "[t]he carrier is liable for damage sustained in case of . . . bodily injury . . . upon condition only that the accident which caused the death or bodily injury took place on board the aircraft or [while] embarking or disembarking." Montreal Convention art. 17(1) (emphasis added).

         The phrase "upon condition only" is new to the Montreal Convention-it is not found in the Warsaw Convention (either in English or in the official French version)[6]-and it makes clear that the passenger's recovery is conditioned only on the occurrence of an accident that causes death or bodily injury either on board the aircraft or during boarding or deplaning. Surely, the drafters of the Montreal Convention could have used a word or phrase with causal meaning instead of "in case of" if they wanted to impose such a causal restriction on the kinds of "damage sustained" that are recoverable when an accident on board an aircraft causes a passenger to incur a bodily injury. Indeed, the drafters did impose such a causal requirement in stating that the accident must have "caused" the death or bodily injury. The drafters' use of "caused" to express that an accident must have caused the bodily injury thus provides additional support for our conclusion that the drafters did not, in the very same sentence, use "in case of" also to mean "caused by."

         3. The Underpinnings of Etihad's Argument

         Admittedly, in light of the foregoing discussion, Etihad's position-that "in case of" does mean "caused by"-may seem absurd. But it is not, and that is because Etihad's argument is rooted in a Warsaw Convention decision of the Second Circuit Court of Appeals in which that court held that American Airlines was not liable under the Warsaw Convention "for mental injuries that were not caused by physical injuries." Ehrlich v. Am. Airlines, Inc., 360 F.3d 366, 368 (2d Cir. 2004) (emphasis added). Etihad asks us to adopt the Second Circuit's Warsaw Convention decision in Ehrlich to decide the Montreal Convention case before us. But the Montreal Convention is a new treaty that we interpret as a matter of first impression, and there is no legal authority that would require us to import Ehrlich's Warsaw Convention determination to govern this Montreal Convention claim.

         In Ehrlich, an American Eagle[7] aircraft overshot its designated runway upon landing at New York's JFK International Airport. An arrestor bed-a bed of material made of water, foam, and cement that crushes under the weight of an airplane, increasing drag and helping bring the airplane to a stop-saved the plane from plunging into the waters of Thurston Bay, which lay 200 feet beyond where the plane came to a halt. To evacuate the aircraft, passengers had to jump six to eight feet from its doorway. Ibid.

         Gary and Maryanne Ehrlich were passengers on the flight. They contended that they suffered bodily injuries (neck, back, shoulder, hip, and knee injuries; hypertension; and a heart problem) during the abnormal landing and subsequent evacuation. They also alleged mental injuries including a fear of flying, nightmares, and trouble sleeping. The district court granted partial summary judgment for the airline defendant as to the mental injuries on the basis that "a plaintiff may only recover for emotional damages caused by physical injuries." Id. at 369 (quoting Ehrlich v. Am. Airlines, 99-CV-6013, 2002 U.S. Dist. LEXIS 21419, at *10 (E.D.N.Y. June 21, 2002) (emphasis added)). The Second Circuit affirmed, noting that "the Ehrlichs had offered no evidence demonstrating a causal connection between their mental and physical injuries." Ehrlich, 360 F.3d at 369.[8]

         Ehrlich reached its conclusion only after grappling at length with the original French text of the Warsaw Convention, finding it ambiguous as to whether it held airlines liable for mental injuries that are not caused by a compensable bodily injury, and inquiring into the original purpose of the Warsaw Convention when it was signed in 1929. Indeed, Ehrlich discussed the Montreal Convention as well: the Montreal Convention was signed just weeks after the Ehrlichs' emergency landing, and the Montreal Convention entered into force after the Second Circuit heard argument in Ehrlich but before it issued its opinion. See id. at 372. But Ehrlich expressly rejected the argument that the Montreal Convention had any retroactive applicability to the Ehrlichs' claim, and the Second Circuit based its decision entirely on its interpretation of the Warsaw Convention. See id. at 373 ("neither the Montreal Convention nor the intentions of its drafters govern this appeal").[9]

         In reaching its conclusion, Ehrlich followed the lead of Jack v. Trans World Airlines, 854 F.Supp. 654, 663-68 (N.D. Cal. 1994), a district-court decision that also concluded that "only emotional distress flowing from the bodily injury is recoverable" under Article 17 of the Warsaw Convention. Id. at 665 (emphasis added). Jack expressly acknowledged (after rejecting other possible interpretations of the Warsaw Convention) that its interpretation "does read a causal component into the phrase 'damage sustained in the event of, '" but nevertheless went ahead with such an interpretation because that interpretation was "not prohibited" by the United States Supreme Court's Warsaw Convention precedents. Id. at 668.

         But "to alter, amend, or add to any treaty, by inserting any clause, whether small or great, important or trivial, [is] an usurpation of power, and not an exercise of judicial functions." The Amiable Isabella, 19 U.S. (6 Wheat.) 1, 71 (1821) (holding that the 1795 U.S.-Spain Treaty for safe passage of ships did not protect a Spanish claimant from United States condemnation of a schooner during the War of 1812 when the requisite passport mandated by the treaty was not affixed to the vessel). Both Ehrlich and Jack interpolated a causal component into the Warsaw Convention that was not required by the text, and both did so expressly to serve the Warsaw Convention's purpose of "limiting the liability of air carriers in order to foster the growth of the fledgling commercial aviation industry." Ehrlich, 360 F.3d at 385 (quoting Floyd, 499 U.S. at 546); see also Jack, 854 F.Supp. at 662, 665 ("such an approach furthers the pro-airline industry goals of the Warsaw Convention because it is so restrictive of passengers' rights"). To be sure, both Ehrlich and Jack found ambiguity in the original French text of the Warsaw Convention before inquiring into the purpose of that treaty and seeking to give effect to that purpose. But what that should mean for us is not, as Etihad would have it, that we should blindly adopt Ehrlich as the law of our circuit for claims under Article 17(1) of the Montreal Convention, but rather that we should grapple with the text of the Montreal Convention itself, and then, to the extent that we find any ambiguity therein, look to relevant persuasive authority-which may include evidence of the purpose of the Montreal Convention, but almost certainly not the nearly century-old purpose of the Warsaw Convention-to assist us in resolving that ambiguity.

         Ehrlich recognized that "the Montreal Convention is an entirely new treaty that unifies and replaces the system of liability that derives from the Warsaw Convention." Ehrlich, 360 F.3d at 371 n.4. So do we. The Montreal Convention was signed in 1999, in six languages including English, and we are charged with interpreting that English text in the first instance rather than clinging to the Second Circuit's purposivist interpretation of a French-language predecessor treaty signed in 1929. In Sections III.B through III.E, infra, to fortify our textual analysis of Article 17(1), we will discuss more fully the relative purposes of the Warsaw and the Montreal Conventions, and we will address relevant decisions of the United States Supreme Court and other courts, which provide useful context for both Ehrlich and our decision here. But for now, it suffices to say that Ehrlich and Jack do not provide insight into meaning of the plain text of Article 17(1) of the Montreal Convention.

         4. Our Textual Interpretation

         Here, then, is a fairer illustration of what damages are recoverable under Article 17(1) according to the plain text of the Montreal Convention:

         (IMAGE OMITTED)[10]

         As this diagram makes clear, because an accident onboard Etihad's aircraft caused Doe to suffer a bodily injury (a fact that Etihad concedes), Doe may therefore recover damages for her mental anguish, regardless of whether that anguish was caused directly by her bodily injury or more generally by the accident that caused the bodily injury. That is because, either way, Doe's mental anguish is "damage sustained in case of-i.e., "in the event of a compensable bodily injury.

         What the plain text of Article 17(1) also makes clear is that a passenger cannot recover damages for mental anguish if there is no requisite accident or if the accident does not cause a bodily injury. For example, if ordinary turbulence causes a passenger to suffer an anxiety attack, the Montreal Convention would not allow the passenger to recover damages for the anxiety attack because ordinary turbulence is not an "accident." Likewise, if there is an accident, such as an emergency landing, and a passenger escapes physically unscathed but mentally harmed, the passenger is barred from recovering mental-anguish damages for want of the required bodily injury. This understanding is supported by the plain text of Article 17(1) of the Montreal Convention-and it also happens to have the advantage of being simpler than Ehrlich's approach.

         Admittedly, however, the text of Article 17(1) is still not entirely clear as to what connection must exist between the required bodily injury and claimed mental anguish. The plain text of Article 17(1) is sufficient on its own to reject Etihad's interpretation of it. And the plain text of Article 17(1) allows our conclusion that when a single "accident" causes both bodily injury and mental anguish, that mental anguish is sustained "in case of" the bodily injury. But the plain text on its own does not necessarily require that a single accident cause both the required bodily injury and the claimed mental anguish in order for that mental anguish to be "sustained in case of" the bodily injury, as our conclusion suggests.

         What if, for example, there are two accidents: first, unusually rough turbulence (which causes a passenger mental anguish but no bodily injury), and second, an unrelated emergency landing, during which every passenger sustains at least some bodily injury. Does the bodily injury sustained in the emergency landing allow the passenger who had previously suffered severe emotional distress to recover for that distress? That is, is mental anguish from the first accident considered "damage sustained in case of bodily injury" because it was sustained during the same flight as the second accident, which caused bodily injury?

         On the one hand, it seems reasonable to read the "in case of" language as precluding recovery of damages for mental anguish in the example presented in the preceding paragraph, and our interpretation of Article 17(1) implicitly supports such a conclusion; but on the other hand, the text of the treaty does not explicitly prohibit such recovery. So, both to bolster our conclusion that mental anguish is "sustained in case of" a bodily injury when it arises from the same accident that caused that bodily injury, and to reinforce the proposition that Ehrlich does not control this case, we review relevant persuasive authorities that provide insight into the meaning of Article 17(1) in the context of its ratification by its signatories. See, e.g., Saks, 470 U.S. at 396 ("[T]reaties are construed more liberally than private agreements, and to ascertain their meaning we may look beyond the written words to the history of the treaty [and] the negotiations" that produced the treaty. (alteration in original) (quoting Choctaw Nation of Indians v. ...

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