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Justin Scheck

The Recorder

10-16-2007

Deep vein thrombosis never became the windfall "asbestos of the air" that eager plaintiffs attorneys were predicting early this decade.

But in a Friday decision, a San Francisco federal judge renewed the hopes of air travelers -- and their attorneys -- who say airline screw-ups resulted in life-threatening blood clots.

Northern District of California Chief Judge Vaughn Walker wrote that in cases alleging an "accident" -- that is, an unforeseeable circumstance, rather than a simple failure to alert passengers to DVT -- the claims may move forward.

DVT, or deep vein thrombosis, is a blood clot caused by prolonged immobility; they were enticing to plaintiffs attorneys because they're relatively common, potentially fatal, and, the lawyers say, the fault of airlines taking insufficient precautions to prevent it.

But DVT hasn't been a slam dunk. In 2004, a nationwide set of DVT cases was consolidated in Walker's San Francisco courtroom, and he was immediately skeptical.

The following year, he granted Boeing Co. summary judgment on the grounds that claims over its failure to warn passengers of the risks of DVT were pre-empted by the Federal Aviation Act. That opinion was largely upheld by the 9th U.S. Circuit Court of Appeals early this month (though the appeals panel did allow claims over seat configuration to move forward).

It threw out any case relating to an international flight in which the only claim against an airline is a failure to warn of the risks of DVT.

On the other hand, Walker's Friday ruling had plaintiffs lawyers cheering.

"It's a wonderful victory for us," said Brenda Posada, a lawyer at Sterns & Walker in Oakland, Calif., who represented plaintiff Marsha Dabulis. It's also the first time that a federal court has denied an airlines' request for summary judgment in a DVT case.

In doing so, Walker drew a distinction under the terms of the Warsaw Convention, which governs international air travel. That agreement says airlines are liable for passenger injury only if it's due to an accident, rather than the normal course of travel.

The U.S. Supreme Court, he wrote, defines an accident for purposes of the Warsaw Convention as "an unexpected or unusual event or happening that is external to the passenger."

Therefore, he wrote, while the simple development of a DVT is not an accident, a DVT developed after a passenger complained of pain from a cramped seat and was denied the opportunity to move to a less-cramped space is.

That's what happened, Walker wrote, to Dabulis, who developed a DVT that required surgery.

After she asked for a transfer from her seat, which had a metal bar obstructing her foot room, Singapore International Airlines flight attendants offered only a seat that didn't recline -- even though, the airline now concedes, other seats were available.

"The idea that SIA somehow discharged its duty by offering Dabulis a seat that was even more restrictive than her original seat is hardly beyond dispute," the judge wrote.

The opinion in In Re Deep Vein Thrombosis Litigation, MDL 04-1606, wasn't a total victory -- Walker threw out a case in which the only alleged reason for confinement in a seat was turbulence -- but did offer other good news for plaintiffs.

Walker allowed other, similar cases to move forward, including one in which a passenger developed a DVT after being confined to his seat during a two-hour delay without flight attendants offering water or any time to get up and stretch.

Dismissing the case, Walker wrote, "would give airlines cart blanche to force passengers to remain seated without reason."

He also refused to dismiss a case in which a woman died after collapsing on a flight, saying that a jury should decide whether the airline acted quickly enough to allow medical professionals onto the plane.

Scott Cunningham, an airline lawyer at Condon & Forsyth in L.A. who worked on the case, didn't return a call by press time.