Volume 2, Issue 2
AVIATION HAPPENINGS SPRING 2016
In this issue
Medical Emergencies May Become Accidents or Not
Attacking the Drone Slayer: Property Rights and Preemption in the Cases against William Merideth
U.S. Commercial Space Launch Competitiveness Act Amends Existing Commercial Space Flight Law and Creates Important New Rights
District of Columbia and Seventh Circuit Hold That NTSB Factual and Probable Cause Reports Are Not Subject to Judicial Review
Eastern District of California Finds California Anti-discrimination Statutes Preempted by ACAA
The Rules They Are A-Changin’
Criminal Charges for Intoxication and Flight Crew Interference on a Southwest Airlines Flight Appealed to the Fifth Circuit
Fifth Circuit Holds Failure to Place a Disembarking Passenger in a Wheelchair Not to be a Wjavas-cript:void(0);arsaw Convention “Accident”
Federal District Court in Chicago Applies Daimler General Jurisdiction Standard to Foreign Multinational Corporation in Multiparty, Multiforum Trial Jurisdiction Act Case
Middle District of Tennessee Holds Contractor Not Liable for Army Helicopter Pilot’s Paralysis and Confirms Continuing Viability of Government Contractor Defense
Fourth Circuit Affirms Enforcement of Oral Settlement Agreement Made Prior to Release
For more information about any of these subjects, please contact Aviation Group chair Bob Williams at
Medical Emergencies May Become
Accidents or Not Allison A. Snyder, New York
Two federal courts recently considered whether
responses to in‐flight medical emergencies
cons tuted “accidents” under the Montreal
Conven on. In Safa v. Deutsche Lu hansa
Ak engesellscha , Inc., the plain ff fell to the floor
complaining of chest pain during a flight from
Philadelphia to Beirut, and the flight crew and
onboard physicians treated him.
Relying on informa on provided by the flight crew
and on‐board physicians that Safa was not
facing a life‐threatening situa on, the captain chose
not to divert the aircra to Dublin. When the aircra
landed in Frankfurt, the plain ff was placed in an
ambulance for transport to the hospital, where he
suffered a prolonged cardiac arrest.
The district court acknowledged that a claim under
the Conven on may be established based on proof
of a flight crew’s unexpected or unusual response to
a passenger’s medical emergency, par cularly where
there is a devia on from an airline’s internal policies
and procedures, but held that Lu hansa had
complied with its policies and granted Lu hansa’s
mo on for summary judgment dismissing the
complaint. The district court also rejected Safa’s
claim that an accident occurred because the crew
inaccurately reported events to the pilot, such as
mistakenly iden fying one of the onboard physicians
as a cardiologist. The district court held that such
inaccurate repor ng, as opposed to a claim that the
crew failed to comply with the airline’s policies and
procedures, could not be an “accident.”
The Second Circuit affirmed the district court’s
decision, agreeing that there was no Montreal
Conven on “accident” because the crew materially
adhered to all applicable policies and procedures in
responding to the plain ff’s medical incident. Safa v.
Deutsche Lu hansa Ak engesellscha , Inc., 42 F.
Supp. 3d 436 (E.D.N.Y. 2014), aff’d, No. 14‐3714,
2015 U.S. App. LEXIS 19316 (2d Cir. Nov. 3, 2015)
(unpublished summary order).
In Baillie v. MedAire Inc., the plain ff’s decedent, Mr.
Baillie, experienced chest pain and shortness of
breath upon boarding a Bri sh Airways flight from
London to Phoenix. The crew gave him oxygen and
aspirin, which were ineffec ve, and contacted
MedAire, a contractor Bri sh Airways retained to
provide medical advice in the event of in‐flight emer‐
gencies, whose responsibili es included making
recommenda ons for possible flight diversions.
The MedAire physician coordinated care for
Mr. Baillie, including loca ng an onboard physician
and evalua ng his symptoms, and was alerted that
Mr. Baillie was suffering the symptoms of a complex
heart a ack. The physician did not recommend a
flight diversion. Several hours later, Mr. Baillie’s con‐
di on had not improved and MedAire was contacted
again, at which me a new physician was on duty and
made recommenda ons that contracted the prior
physician’s assessment. This second physician also
did not recommend a flight diversion.
Upon landing, Mr. Baillie was rushed to a hospital
where it was determined that he had suffered a heart
a ack six‐to‐eight hours earlier, and he died.
The district court denied MedAire’s mo on for
summary judgment, holding that the Montreal
Conven on governed the plain ff’s claims because
MedAire was providing services “in furtherance of
the contract of carriage of an interna onal flight,”
and that there was a ques on of fact as to whether
the MedAire physician’s provided inadequate medical
care, which would cons tute an “accident.” The
district court also rejected Medaire’s argument that it
was immune from liability pursuant to the “Good
Samaritan” provision of the Avia on Medical Assis‐
tance Act of 1998, § 5(b), finding that it did not apply
to the two MedAire physicians who were contracted
to provide aid during in‐flight medical emergencies.
Baillie v. MedAire Inc., No. CV‐14‐00420‐PHX‐SMM,
2015 U.S. Dist. LEXIS 164350 (D. Ariz. Dec. 8, 2015).
Avia on Group News
Schnader was selected as “Avia on Li ga on Law Firm of the Year—New York” by
Corporate Interna onal Magazine.
Denny Shupe received a CorporateLiveWire‐Global Award for Industrial Defence. He
was also nominated by in‐house counsel and peers to appear in Euromoney’s Expert
Guide on Li ga on and Product Liability as one of the leading prac oners of
product liability.
Avia on Group chair Bob Williams was elected to the Li ga on Counsel of American
and invited to join the Interna onal Associa on of Defense Counsel.
Partner Nancy Winkelman began her one‐year term as president of The
American Academy of Appellate Lawyers on January 1, 2016.
Partner Denny Shupe spoke at the University of Pennsylvania Law School as part of
Public Interest Week at an event hosted by Servicemembers & Veterans Legal
Assistance Project. He discussed the increasing legal issues facing veterans.
Bob Williams will co‐present a PBI seminar en tled “So, You Want to Fly a Drone?” on
March 7.
Denny Shupe will give a transporta on law update for PBI on April 6.
[email protected] or vice chair Barry Alexander at [email protected].
A acking the Drone Slayer: Property Rights
and Preemp on in the Cases against William
Merideth Robert J. Williams, Pi sburgh
Most legal ac vity pertaining to small unmanned
aircra systems (“sUAS” or “drones”) over the last
several years has focused almost
exclusively on the authority, crea‐
on and enforcement of federal
regula on. Federal Avia on Ad-
ministra on v. Pirker confirmed
the FAA’s jurisdic on to regulate
commercial drone use. Operators
subsequently filed thousands of
applica ons for
Cer ficates of Waiver or Authoriza on to operate
drones commercially, of which the FAA already has
granted over 3,500.
FAA regula on of drones recently expanded to non‐
commercial use, with the ac va on of a mandatory
registry for all sUAS. As of mid‐February, the
number of registered sUAS owners exceeded the
number of registered pilots (325,000 registered
sUAS owners vs. 320,000 pilots). The FAA believes
those margins actually are greater, with typical sUAS
operators owning, on average, 1.5 drones each.
The cases against the so‐called Drone Slayer pit
property and privacy rights against those
regula ons in an ever‐evolving bid to shape the legal
landscape of drone ownership and opera on. On
July 26, 2015, William Merideth used a 12‐gauge
shotgun to pluck John David Boggs’s DJI Phantom
from the sky near Louisville, Kentucky. Merideth
claimed the drone was invading his privacy by
hovering over his property at low al tudes and
a emp ng to photograph his sunbathing daughter.
Merideth was arrested and charged criminally with
first‐degree endangerment and criminal mischief.
Persuaded by witnesses who stated that Boggs’s
Phantom was flying below the tree line, Bulli
County Judge Rebecca Ward dismissed both
charges on October 26, 2016. Judge Ward expressly
concluded Merideth “had the right to shoot this
drone.” Merideth began calling himself the “Drone
Slayer” and vowed he would do it again.
On January 6, 2016, Boggs commenced a civil ac on
(No. 16‐cv‐3) against Merideth in the United States
District Court for the Western District of Kentucky.
The ac on seeks damages for destruc on of the
drone and declara ons that the drone was being
operated “in ‘navigable airspace’ within the
exclusive jurisdic on of the United States” and “did
not violate [Merideth’s] reasona‐
ble expecta on of privacy.” The
Complaint also contends
Kentucky privacy laws and Judge
Ward’s ruling are
preempted by the FAA’s
regula on of aircra and na onal
airspace.
The bases for ruling on Boggs’s claims are likely to
be as significant as the decision itself. The case
directly implicates the Supreme Court’s prior
holding that a landowner owns “at least as much of
the space above the ground as he can occupy or use
in connec on with the land” and intrusions of that
airspace are “in the same category as invasions of
the surface.” United States v. Causby, 328 U.S. 256,
260‐61, 265 (1946). The district court should be
bound by Causby, and therefore, Boggs will have to
prove either that he was opera ng his drone above
Merideth’s useable airspace or that Causby
subsequently became bad law. Even if Boggs can
convince the judge that FAA regula on of aircra
and airspace preempt Kentucky privacy laws (and
overrule Causby), it is unclear how he will avoid a
determina on that he did not violate Federal
Avia on Regula on 91.113, which generally
prohibits opera on of any aircra within 500 feet of
any person or structure. The flight path and al tude
of the subject flight are hotly disputed, with
Merideth claiming al tudes as low as 10 feet and
Boggs insis ng it was no lower than about 200 feet.
The drone was not seized and quaran ned as evi‐
dence by local authori es when they arrested Meri‐
deth, and the video of its flight is choppy and
fragmented, leading some to contend that it has
been edited by Boggs (which he denies).
Meredith has not yet filed a response to Boggs’
complaint. We will con nue to monitor this ac on
for its much‐an cipated impact on drone laws and
regula ons.
U.S. Commercial Space Launch
Compe veness Act Amends Exis ng
Commercial Space Flight Law and
Creates Important New Rights Julie E. Randolph, Philadelphia
More than 30 years ago, the United States Congress
passed the Commercial Space Launch Act of 1984 to
“encourage the United States private sector to
provide launch vehicles and associated launch
services” and provide necessary oversight for such
services.
51 U.S.C.
§ 50901
(b). The
1984
Act, now
codified at 51 U.S.C. § 50901 et seq., was amended
in 1988 to provide government indemnifica on
against third‐party claims. The Commercial Space
Launch Amendments Act of 2004 incorporated
several new provisions, including a “regulatory
learning period” (during which the FAA’s ability to
regulate commercial human spaceflight is limited,
allowing regula ons only in cases of serious
accidents or other high‐risk incidents). Although
limi ng regula on, these Acts did require en es
making commercial space launches and reentries to
receive a license from the FAA to do so.
On November 25, 2015, President Obama signed
into law the U.S. Commercial Space Launch
Compe veness Act, which contains the Spurring
Private Aerospace Compe veness and Entrepre‐
neurship Act of 2015 (aka the SPACE Act of 2015).
The express intent of the Space Act of 2015 is to
support United States commercial space ventures.
As such, this Act contains several updates and addi‐
ons to previous commercial space acts, including:
Extending the government indemnifica on of
commercial space ventures against third party
claims to September 30, 2025 and direc ng the
Secretary of Transporta on and General
Comptroller to reevaluate the indemnifica on
amount;
Extending the regulatory learning period to
2023;
Placing ac ons arising from a licensed launch or
reentry under federal jurisdic on;
Direc ng the Secretary of Transporta on to
inves gate and recommend means to
streamline licensing;
Upda ng and adding benchmarks for federal
agencies to inves gate and recommend safety
regula ons and report on the commercial space
transporta on industry’s status and use of space
support vehicle services; and
Adding government astronauts to the spacecra
carriage categories.
The U.S. Commercial Space Launch Compe veness
Act also included the Space Resource Explora on
and U liza on Act of 2015 (passed on November
25), which introduces completely new rights for
commercial space en es pursuing asteroid mining.
The Space Resource Explora on and U liza on Act
en tles United States ci zens engaged in
commercial asteroid mining “to any asteroid
resource or space re‐
source obtained,”
which includes water
and minerals but ex‐
cludes any biological
materials. Because
asteroid mining is a
goal for many com‐
mercial space ven‐
tures, and in July 2015
Planetary Resources
deployed a spacecra
from the Interna onal
Space Sta on to test
technology that could be applied in such mining, this
language may provide some assurance to such ven‐
tures. Of note, however, this area is not completely
se led: the 1967 Treaty on Principles Governing the
Ac vi es of States in the Explora ons and Use of
Outer Space, including the Moon and Other Celes al
Bodies (commonly known as the Outer Space Treaty)
expressly states that na ons may not claim celes al
bodies, although not expressly denying individuals’
rights to resources on those bodies. This legal area
will be one to watch in the next few years as aster‐
oid mining moves from the pages of science fic on
into reality.
District of Columbia and Seventh Circuit Hold
That NTSB Factual and Probable Cause Reports
Are Not Subject to Judicial Review Lee C. Schmeer, Philadelphia
The United States Circuit Courts of Appeals for the
District of Columbia and Seventh Circuits recently
joined the Ninth Circuit in holding that Na onal
Transporta on Safety Board (“NTSB”) reports are
not final agency decisions subject to judicial review.
It had been nearly two decades since the
Ninth Circuit considered the issue in Gibson v. NTSB,
118 F.3d 1312 (9th Cir. 1997).
In Joshi v. NTSB, the father of a pilot whose small
general avia on aircra crashed on final approach to
an Indiana airport filed a pe on for reconsidera on
a er the NTSB determined pilot error was the prob‐
able cause of the accident. Id. at 9. The father had
conducted a fairly involved private inves ga on that
included hiring an engineering firm to recreate as‐
pects of the accident flight. He had also se led a civil
suit under the Federal Tort Claims Act in which the
Department of Jus ce admi ed that a court could
find that air traffic control negligence was a cause of
the crash. Id. at 10 n.2. The NTSB denied the pe on
for reconsidera on, and the father sought review of
the denial in the Seventh Circuit Court of Appeals.
The Seventh Circuit held that, because the NTSB
Factual and Probable Cause reports were not final
agency ac ons, it was without jurisdic on to review
the reports or the denial of the pe on for
reconsidera on. Id. at 13. The Court reasoned that a
final agency ac on had to have some legal
consequence, and the NTSB Factual and Probable
Cause reports were issued only for accident
preven on purposes and as fact‐finding assessments
that may be used to develop future regula ons.
Id. at 11. The fact that there might be some
“prac cal consequences” to the pilot’s and her
family’s name was not of legal consequence.
Furthermore, the father’s a empt to analogize
NTSB reports with FAA hazard/no hazard
determina ons for proposed construc on near
airports was not persuasive. The Court pointed out
that the FAA’s determina on that proposed con‐
struc on near an airport presents a hazard to air
traffic has very real legal consequences, including
the possible denial of building permits. Id. at 12. The
Court found it lacked jurisdic on over the denial of
the pe on for reconsidera on because the denial
likewise did not create legal consequences. Id. at 12‐
13.
The Seventh Circuit several months later held that it
lacked jurisdic on to review whether the NTSB was
required to withhold or rescind a Factual Report
a er the commercial operator of a news helicopter
that crashed in Sea le informed the NTSB that the
report omi ed key informa on that allegedly would
prevent the board from accurately determining a
probable cause. Helicopters, Inc. v. NTSB, 803 F.3d
844, 845 (7th Cir. 2015). The Court extensively cited
Joshi in finding that the Factual Report was not a
final agency ac on because its purpose was limited
to determining whether addi onal safety
regula ons are necessary and because no legal
consequences flowed from the NTSB’s reports. Id. at
845‐46. The operator’s argument that it would be
subjected to “commercial and reputa onal harm”
was closer to the “prac cal consequences”
considered by the Joshi Court than any legal harm
that would emanate from a final agency decision. Id.
at 846.
The lesson of Joshi and Helicopters, Inc. is that, if you
do not agree with an NTSB report, you need to
convince the NTSB to change it. The appellate courts
will probably not present a viable op on. Joshi v.
NTSB, 791 F.3d 8 (D.C. Cir. 2015), cert.
denied, 2016 U.S. LEXIS 910 (Jan. 25, 2016).
Eastern District of California Finds California
An ‐discrimina on Statutes Preempted by
ACAA William D. Janicki, California
The United States District Court for the Eastern
District of California recently found in Segalman v.
Southwest Airlines Co, that the Air Carrier
Access Act (“ACAA”) preempts certain California
state law statutory claims. The decision reduced the
number of poten ally viable claims in the plain ff’s
long quest to sue for alleged improper handling of
his wheelchair by an airline.
Segalman filed suit in 2011, alleging that Southwest
Airline employees (i) caused his wheelchair to arrive
at his des na on without power, (ii) failed to follow
his wri en direc ons for storage of the wheelchair,
(iii) broke the wheelchair’s arm and neck rests, and
(iv) severed the wheel chair’s seat belt. Segalman
alleged these acts violated the Americans with
Disabili es Act (“ADA”) and two California an ‐
discrimina on statutes and cons tuted negligence.
The district court ruled that the ADA does not apply
inside airport terminals and that the state law
statutory and negligence claims were preempted by
the federal regula ons implemen ng the ACAA—an
amendment to the Federal Avia on Act that
protects disabled travelers from discrimina on by
air carriers—and granted Southwest’s mo on to
dismiss the Second Amended Complaint. Segalman
appealed.
While the case was on appeal, the Ninth Circuit
decided Gilstrap v. United Air Lines, Inc., 709 F.3d
995 (9th Cir. 2013), in which it considered the
preemp ve effect of the ACAA and held that,
whenever “the par cular area of avia on commerce
and safety implicated by the lawsuit is governed by
pervasive federal regula ons[,] any applicable state
standards of care are preempted.” Federal law does
not, however, preempt any state remedies that may
be available when airlines violate federal standards.
Id. at 1010. Therefore, the viola on of the
regula ons implemen ng the ACAA could give rise
to a state law cause of ac on.
The Ninth Circuit in an unpublished decision in
Segalman concluded that the ACAA pervasively
regulates how air carriers must stow and care for
wheelchairs and that these pervasive regula ons
preempt state‐law standards of care on plain ff’s
statutory claims. Segalman v. Southwest Airlines,
No. 12‐17601 (9th Cir. May 13, 2015). Segalman was
remanded to the district court to determine
whether California’s statutory and negligence law
provides remedies for viola on of the federal
standard of care.
On remand, Segalman filed a Third Amended
Complaint and Southwest moved to dismiss three of
the four causes of ac on. The Eastern District found
problems with plain ff’s statutory claims. First, the
ACAA, a cause of ac on added in the Third
Amended Complaint, does not provide a private
right of ac on for alleged viola ons, so the first
cause of ac on was dismissed. Second, California’s
an ‐discrimina on statutes require either (i) a
viola on of the ADA, (ii) inten onal discrimina on,
or (iii) a viola on of a regula on that exceeds those
set by the ADA. However, the ADA does not apply
inside airport terminals, and plain ff did not allege
either
inten on‐
al discrim‐
ina on or
a viola‐
on of a
regula on
that ex‐
ceeds
those set
by the ADA. Therefore, plain ff’s second cause of
ac on was dismissed. Because plain ff’s fourth
cause of ac on was predicated on the statutes in
the second cause of ac on, it too was dismissed.
The Segalman saga con nues, as the negligence
cause of ac on, using federal standards of care from
the ACAA regula ons, is being li gated. Southwest
filed its answer on February 17, 2016. Segalman v.
Southwest Airlines Co., No. 2:11‐cv—1800‐MCE‐
CKD (E.D. Cal. January 11, 2016).
The Rules They Are A‐Changin’ David C. Dziengowski, Philadelphia
Important amendments to the Federal Rules of Civil
Procedure went into effect on December 1, 2015.
These amendments govern all proceedings
commenced a er December 1, 2015, and, “in so far
as just and prac cable, all proceedings then
pending.” Conceived at the 2010 Duke Conference,
the amendments seek to change the culture of
discovery by emphasizing coopera on, expediency,
early and ac ve judicial case management,
propor onality in discovery, and preserva on of—
and sanc ons for—the loss of electronically stored
informa on (“ESI”).
Some of the changes implemented by the amended
rules are:
Fed. R. Civ. P. now provides that the rules should
be “employed by the court and the
par es” to secure a just, speedy, and inexpen‐
sive resolu on of every ac on and proceeding.
The me for service of the summons under Fed.
R. Civ. P. 4(m) has been reduced from 120 days
to 90 days. If service of the summons is not
made within that me, the court must dismiss
the ac on without prejudice or order that ser‐
vice be made within a specified me.
The objec ons that may be asserted in response
to requests for produc on under Fed. R. Civ. P.
34 have been limited. Generic objec ons, which
are frequently asserted in
many jurisdic ons, are no
longer allowed. Instead,
par es must state with
specificity the grounds for
objec ng to a request, as well
as whether responsive mate‐
rials are being withheld based
on objec ons (avia on
prac oners are notorious
for failing to provide any
descrip on of documents
being withheld).
Discovery plans contemplated
by Fed. R. Civ. P. must now state the par es’
views on preserva on of ESI and agreements
under Federal Rule of Evidence 502 (addressing
disclosure of a orney‐client privileged
informa on and work product), and scheduling
orders issued by courts under Fed. R. Civ. P. 16
may now address these topics.
Courts may also require par es to
request a conference with the court before filing
a discovery mo on.
The amendment that is crea ng the most buzz,
however, is the change to Rule 26, which now
requires discovery to be “propor onal” to the case’s
needs, with many wondering whether the scope of
discovery will be substan ally limited at least in
certain cases. Despite the considerable buzz, district
courts from New York to Texas to California have, to
date, have characterized the amendment as a non‐
event. Also of note, deleted from Rule 26 is the
language allowing for discovery that is “reasonably
calculated to lead to the discovery of
admissible evidence.” Time will tell, however, what
impact these changes will have on the course of
discovery.
Finally, there were important revisions to Fed. R.
Civ. P. 37 governing the preserva on of ESI.
Specifically, the rule was amended in response to
decisions in several Circuit Courts of Appeals holding
that negligent failure to preserve ESI could support
sanc ons. Revised Rule 37 now requires a finding of
“intent to deprive another party” of the use of ESI to
warrant sanc ons. Absent a finding of intent, a court
can cra cura ve measures only if it finds prejudice.
In light of the changes to the ESI preserva on rule,
early collec on and documenta on of ESI are
important. Expect outside counsel to ini ate earlier
discussions about relevant ESI.
In‐house counsel should be prepared
to discuss his or her company’s
file‐storage systems, document
custodians, and preserva on policies.
Back‐up systems may help a company
avoid sanc ons. In any case, a
company must be prepared to
document and prove that it has
reasonable ESI‐preserva on policies
in place.
As nearly half of all states have
modeled their rules of civil procedure
a er the federal rules, expect these
amendments to find their way into a state court
near you.
Criminal Charges for Intoxica on and Flight
Crew Interference on a Southwest Airlines
Flight Appealed to the Fi h Circuit Denny Shupe, Philadelphia
While there are increasingly frequent news reports
about intoxicated passengers causing disrup ons on
airline flights,
these cases very
infrequently
reach trial and
even less
frequently reach
a federal court
of appeals. One
such case now is
pending in the
United States
Court of Appeals
for the Fi h
Circuit, United States of America v
Zachary Ziba. Appellant’s opening brief was filed on
January 11, 2016, and the brief of the United States
Government was due on March 2, 2016.
The case arose out of an incident on Southwest
Flight 958 from Denver to Dallas on January 18,
2015. At trial, the federal government presented
evidence that Mr. Ziba had consumed large quan ‐
es of alcoholic beverages before his flight and that,
by using the front bathroom, by refusing to stay in
his seat a er takeoff and before reaching a safe
al tude, and by being disrup ve, disobedient and by
screaming profani es, he in midated a flight
a endant.
The flight diverted to Amarillo, Texas (where the trial
took place) so Mr. Ziba could be
removed from the aircra . He was charged by the
U.S. A orney with viola on of a federal crime, 49
U.S.C. § 46504, Interference with Flight Crew
Members and A endants.
This statute provides, in relevant part, that “[a]n in‐
dividual on an aircra in the special aircra
jurisdic on of the United States who, by assaul ng
or in mida ng a flight crew member or flight
a endant of the aircra , interferes with the
performance of the du es of the member or
a endant or lessens the ability of the member or
a endant to perform those du es, or a empts or
conspires to do such an act, shall be fined under tle
18, imprisoned for not more than 20 years, or
both.” A er a one week trial, the jury convicted Mr.
Ziba; he was sentenced to four months in prison.
On appeal, Mr. Ziba contends among other things
that: (1) the evidence was insufficient to prove
interference because his conduct “could not have
placed an ordinary, reasonable person in fear;” (2)
49 U.S.C. § 46504 is a “specific intent,” not a
“general intent,” crime; and (3) there was no
evidence that Ziba, who admi ed to being
intoxicated, acted with knowledge that he was
in mida ng anybody or had the objec ve of
comple ng any unlawful act.
Mr. Ziba has requested oral argument before the
Fi h Circuit. This case is being closely watched by
the airline industry. United States of America v.
Zachary Ziba, Case No. 15‐10873 (5th Cir.).
Fi h Circuit Holds Failure to Place a
Disembarking Passenger in a Wheelchair Not
to be a Warsaw Conven on “Accident” David C. Dziengowski, Philadelphia
The Fi h Circuit affirmed a grant of summary
judgment on December 2, 2015, finding in Nguyen v.
Korean Air Lines, Co., Ltd., that an airline’s failure to
place a disembarking passenger in a wheelchair does
not cons tute an “accident” under Ar cle 17 of the
Warsaw Conven on.
The plain ff, a seventy‐six‐year‐old woman who
understood only Vietnamese, flew Korean Air from
Ho Chi Minh City to Seoul and then to Dallas. Before
departure, she arranged for Korean Air to provide
her with wheelchair service upon arrival at Dallas.
The plain ff tried to confirm this service during her
flight from Seoul to Dallas, but the flight a endant
did not speak Vietnamese. Prior to landing, the
cabin crew made an announcement about Korean
Air’s wheelchair policy, but this announcement was
made in English and Korean.
Once the plane landed, the plain ff did not wait for
other passengers to de‐plane; she de‐planed with
the passengers in her row. At the gate, “[s]he did
not ask for a wheelchair; she did not point at a
wheelchair; she did not sit in a wheelchair; she did
not indicate a need for a Vietnamese‐speaker.” She
simply walked past a cadre of wai ng a endants
with parked wheelchairs.
Then, while riding an escalator to
the baggage claim, she fell and
suffered mul ple injuries.
Finding the plain ff did not pre‐
sent evidence that Korean Air’s
failure to place her in a wheelchair
cons tuted an “unexpected or un‐
usual event,” the Fi h Circuit em‐
phasized the plain ff’s ac ons in
seemingly abandoning wheelchair
service: the plain ff “never requested a wheelchair
a er deplaning, nor did she wait at the gate for
one. To the contrary. Rows of wheelchairs were
wai ng for passengers as they deplaned, and [the
plain ff] walked right past them.” For its part, the
airline helped itself by offering evidence that, on
any given flight, one‐to‐two passengers will change
their mind and reject previously requested wheel‐
chair service. Id. at 140.
The Fi h Circuit also rejected as unworka‐
ble the plain ff’s proposed rule that Kore‐
an Air should have issued “personalized
instruc ons” in her na ve language. Id.
Looking to the manifest, the Fi h
Circuit observed that the flight carried
passengers from eighteen different na‐
ons. Id. at 139. As for the wheelchair
request list, it included passengers from
seven na ons. Id. The plain ff did not
present any evidence, the Fi h Circuit wrote,
demonstra ng “that it was unexpected or unusual
for the airline to communicate with passengers in
only Korean and English”—the na ve languages of
the ci es of departure and arrival. Id. Nguyen v.
Korean Air Lines, Co., Ltd., 807 F.3d 133 (5th Cir.
2015).
Federal District Court in Chicago Applies
Daimler General Jurisdic on Standard to
Foreign Mul na onal Corpora on in
Mul party, Mul forum Trial Jurisdic on Act
Case Jonathan M. Stern, Washington, D.C.
In what may be the first decision of its kind, the
United States District Court for the Northern District
of Illinois dismissed Airbus, S.A.S. from li ga on aris‐
ing out of the crash into the Java Sea of Air Asia
Flight No. 8501 during a flight from Indonesia to Sin‐
gapore. Because there were more than 75 deaths
from the accident, the court had federal ques on
subject ma er jurisdic on under the
Mul party, Mul forum Trial Jurisdic on Act of 2002
(the “MMTJA”). The principal ques on raised by Air‐
bus’s mo on was whether there were sufficient con‐
tacts between Airbus, S.A.S. and the en rety of the
United States to exercise general jurisdic on over
Airbus.
The MMTJA created federal court jurisdic on over
cases arising out of “a single accident, where at least
75 natural persons have died in the accident at a
discrete loca on,” so long as specified “minimum
diversity” condi ons are met. Because of this 75
death threshold, fortunately rela vely few cases fall
under the MMTJA. When the threshold is met,
however, the MMTJA offers advantages and
efficiencies, including li ga ng all cases in one court
and na onwide service of process.
The court in Siswanto v. Airbus, S.A.S., conducted a
“minimum contacts” analysis of Airbus’s na onwide
contacts and concluded that they were insufficient
to meet the demanding standard of Daimler AG v.
Bauman, 134 S. Ct. 746 (2014). “The contacts may
show that Airbus has extensive contacts with the
United States in the aggregate,” the court write,
“but they do not establish that the company is
‘essen ally at home’ here.” The court was not
swayed by Airbus’s sales of 811 aircra —6.73 per‐
cent—to United States‐based customers over 10
years; that Airbus was spending 42 percent of its
aircra ‐related procurement in the United States; or
that Airbus subsidiaries had thousands of employees
in the United States. The court also denied plain ffs’
request to conduct jurisdic onal discovery, no ng
that “Plain ffs have not cleared the high hurdle re‐
quired for jus fying jurisdic onal discovery.”
The unique aspect of the Siswanto case is the
analysis of jurisdic on on a na onwide, rather than
a state‐by‐state, basis. The significance is that, in
MMTJA cases, a corpora on that is subject to
jurisdic on in any state in the United States will be
subject to jurisdic on in the MMTJA court even if it
sits in a different state. Therefore, a corpora on that
has its principal place of business in, or is
incorporated under the law of, any of the United
States (or its territories) will in an MMTJA case be
subject to personal jurisdic on in any United States
District Court. Siswanto v. Airbus, S.A.S., No. 15 C
5486, 2015 U.S. Dist. LEXIS 173033 (N.D. Ill. Dec. 30,
2015).
Middle District of Tennessee Holds Contractor
Not Liable for Army Helicopter Pilot’s
Paralysis and Confirms Con nuing Viability of
Government Contractor Defense By Barry S. Alexander, New York
Gary Linfoot was permanently paralyzed when an
AH‐6M model helicopter he was pilo ng crashed
during a mission south of Baghdad, Iraq. Mr.
Linfoot’s injuries allegedly were exacerbated by the
installa on of a voice warning system (“VWS”) in
the crush box below his pilot seat, which lessened
the crush box’s ability to absorb the ground impact.
McDonnell Douglas Helicopter Company (“MDHC”)
neither manufactured the VWS nor selected its lo‐
ca on in the helicopter. Rather, MDHC supplied kits
for the conversion that included the installa on of
the VWS (the VWS was provided separately by
another company) and performed limited flight
tests to evaluate the func onality of the VWS but
not to assess its loca on. Nevertheless, Mr. Linfoot
and his wife alleged that MDHC should have warned
the Army that pu ng the VWS inside the crush box
would diminish its efficacy.
MDHC filed a mo on for summary judgment,
making two arguments addressed by the Court.
First, MDHC argued that plain ffs failed to present
sufficient evidence that MDHC’s failure to warn was
a proximate cause of Mr. Linfoot’s injuries. Second,
MDHC argued that it was shielded from liability by
the government contractor defense.
The court, in Linfoot v. McDonnell Douglas
Helicopter Co., held that plain ffs could not
establish a failure to warn claim because:
1. common sense would dictate against pu ng
something in the crush box, evidencing that a
warning should not have been needed;
2. the Army’s express limita ons on the scope of
MDHC’s tes ng evidenced that a warning
would not have brought about a design change
(moreover, there was evidence that an MDHC
employee had given a verbal warning); and
3. the Army’s rigorous design and approval pro‐
cess provided li le room for MDHC to suggest
design changes or for the Army to implement
any such sugges ons.
The Court also addressed and agreed with MDHC’s
argument that it was shielded from liability by the
government contractor defense. Applying the
tradi onal factors set forth in Boyle v. United
Technologies Corp., 487 U.S. 500 (1988), the court
found that the first two factors were readily met
because (1) the design specifica on at issue—the
loca on of the VWS—was generated by the
government, and (2) no one disputed that the VWS
was installed by another contractor in accordance
with the Army’s design. With regard to the third
factor (the requirement that the contractor warn of
dangers known to it but not the government), the
court was persuaded by expert evidence
demonstra ng that the Army was aware of the
importance of protec ng the space within the crush
box. Accordingly, the court held that MDHC was
en tled to summary judgment under the
government contractor defense.
The court’s government contractor defense holding
serves as a reaffirma on of the defense’s viability in
cases against contractors that arise out of
accidents involving military aircra . Linfoot v.
McDonnell Douglas Helicopter Co., No. 3:09‐cv‐
00639 (M.D. Tenn. 2016).
Fourth Circuit Affirms Enforcement of Oral
Se lement Agreement Made Prior to Release Lilian M. Loh, San Francisco
In Swi v. Fron er Airlines, the plain ff appealed a
district court’s order gran ng defendant Fron er
Airlines’ mo on to enforce an oral se lement
agreement, which was made prior to the execu on
of a release, and dismissing the plain ff’s ac on.
The Fourth Circuit affirmed the district court’s
decision.
On appeal, the plain ff proffered numerous
arguments that no binding se lement agreement
existed. First, the plain ff asserted that her signing
of the release was a condi on precedent to the
crea on of an enforceable agreement. This
asser on was belied, however, by the plain ff’s
inability to reference any discussion of such a
requirement. Because no men on was made of a
requirement of a subsequent wri en confirma on
in reaching the agreement, the fact that the release
was never signed was found not to undermine the
existence of the prior oral se lement agreement.
The plain ff next argued that the release “added
addi onal terms and required a signature,” thus
proving that there was no prior agreement. The
Court rejected this argument as well, holding that
the mere existence of an unsigned and subsequent
release does not void a prior oral argument.
Moving on from arguments that there was no
se lement agreement without the executed
release, the plain ff asserted that the district court
erred by ruling without holding a hearing on the
mo on to enforce the se lement agreement.
The court noted that an eviden ary hearing must
be held where there is substan al factual dispute
over the agreement’s existence or its terms. Here,
however, no hearing was required because a
se lement agreement clearly existed, its terms and
condi ons could be determined, and the excuse for
nonperformance was compara vely unsubstan al.
Both par es agreed that the plain ff requested a
specific sum for dismissing her case, Fron er
Airlines agreed to pay it, and the par es shook
hands on the deal. Based on this, the Fourth Circuit
held that the district court had not abused its
discre on in reaching a decision without the benefit
of a hearing.
The plain ff also argued that the se lement
agreement was unenforceable because Fron er’s
nego a on tac cs were unfair and in bad faith. The
Fourth Circuit rejected this argument as well,
finding that the factors did not support of finding of
unconscionability ‐ the bargain was not obviously
inequitable, nor was there any evidence that
Fron er misrepresented or concealed evidence or
that Fron er’s counsel badgered the plain ff.
Finally, the plain ff argued that the district court’s
order that she sign the release would require her to
perjure herself because the release stated that she
freely entered into the agreement. Once again,
contrary to her argument, the district court’s finding
was that a se lement agreement existed prior to
the unexecuted release, which did not need to be
executed as it was not part of the oral
agreement. Swi v. Fron er Airlines, 2016 U.S.
App. LEXIS 178 (4th Cir. Jan. 7, 2016).
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