Weaver v. Delta Airlines Inc 56, F. Supp. 2d 1190, (1999)
U.S. District Court for the District of Montana
Facts
Weaver seeks compensation for injuries received as a passenger on a Delta flight from London to Billings on November 7, 1996. In that flight, mechanical problems necessitated an emergency landing in Dayton, Ohio. Delta admits that the emergency landing was an “accident on board” the aircraft as those terms are used under the Warsaw Convention. (See Delta’s Statement of Uncontroverted Facts [Doc. No. 13] at 2-3.) During the emergency landing, Weaver experienced terror and felt physical manifestations of that terror. (Id.) Subsequently, Weaver sought medical treatment for emotional and physical problems attributable to her flight experiences, and she was diagnosed with, and received treatment for, post-traumatic stress disorder.
Issue(s)
Could the plaintiff recover for PTSD in circumstances where she could prove the physical damage to her brain arising from the accident and the PTSD?
Discussion
Page 1191 The central issue in this case is whether Weaver suffered a bodily injury, therefore allowing recovery under the Warsaw Convention. Weaver has presented evidence of physical injury. (See, e.g., Aff. of Dr. Bigler [Doc. No. 19], Ex. 2 at 4 (stating that “Kathy Weaver has a classic case of chronic posttraumatic stress disorder. PTSD has a physical basis [and] this physical basis is secondary to alteration in brain chemistry, physiology, and anatomy.”); Aff. of Dr. Yelvington [Doc. No. 20] at 2 (stating that the “impact on Kathy Weaver of the events which occurred on that flight was extreme and included biochemical reactions which had physical impacts upon her brain and neurologic system.”).) Weaver has met her burden of showing an absence of any factual issue that the emergency landing physically impacted Weaver’s brain.
Page 1192 In response, Delta has not presented evidence sufficient to raise a genuine factual issue. Delta did not file a Statement of Genuine Issues as part of its response to Weaver’s motion, as was required by Local Rule 220-3(a). Delta did file the Affidavit of Joseph McElhinny, Psy.D., which critiques the scientific research relied upon by Weaver but, regarding Weaver’s condition, notes only (and without explanation) that “there is no evidence that Ms. Weaver suffered any objective brain damage herself.” (Aff. of McElhinny [Doc. No. 38], Ex. A at 2.) Apparently, however, McElhinny did not examine Weaver. Under Fed.R.Civ.P. 56(e), “the adverse party’s response … must set forth specific facts showing that there is a genuine issue for trial.” Here, McElhinny’s affidavit does not raise a genuine issue that Weaver’s injury is non-physical. Nor does Delta raise a genuine issue that Weaver’s post-traumatic stress disorder was caused by something other than the emergency landing. Therefore, no genuine issue of material fact exists, and the Court now turns to the issue of whether Weaver or Delta is entitled to judgment as a matter of law.
Weaver’s action here is distinguishable from previous cases, because her claim is presented as a physical injury and she relies on recent scientific research explaining that post-traumatic stress disorder evidences actual trauma to brain cell structures. Weaver’s post-traumatic stress disorder evidences an injury to her brain, and the only reasonable conclusion is that it is, in fact, a bodily injury.
More particularly, the injury to her brain should be considered a “bodily injury” as defined under the Warsaw Convention. Granted, Weaver’s injury manifests itself in ways that are similar to the “injuries” previously found not compensable in similar cases under the Warsaw Convention. However, the central factor here is not legal, but medical. The legal question in this case is simply whether the Warsaw Convention allows recovery for this particular kind of bodily injury, i.e., a brain injury (even with slight physical effects). The answer must be yes.
The Court is cognizant that the Warsaw Convention chose to preclude recovery for purely psychic injuries, and the Court respects the Supreme Court’s determination in Floyd that such was a legislative choice. Moreover, the present holding has the potential of allowing for more valid actions under the Warsaw Convention, with the increase attributable only to the increased sophistication of medical science. However, no floodgates of litigation will be opened by allowing for claims such as Weaver’s, which are based on a definite diagnosis of a disorder that arises from a physical injury that is medically verifiable. Fright alone is not compensable, but brain injury from fright is. Unlike the plaintiffs in Floyd and its progeny, Weaver’s injury is a “bodily injury” as defined by the Warsaw Convention.
Useful for
Mental injuries recoverable under Convention where evidence of physical damage to brain
