In Oshana v. Aer Lingus Limited, the plaintiff alleged that while she was seated on the toilet during a flight from Chicago to Dublin, a crew member told her to return to her seat immediately. According to the plaintiff, before she had time to pull her pants up, the crew member unlocked the lavatory door from the outside, grabbed her, and pushed her into her seat. She claimed physical pain from hitting the armrest when the flight attendants threw her into the seat, and emotional distress from "having her genitals exposed in front of others." Aer Lingus countered that the plaintiff's account was a fabrication, and that she was dressed and "fixing her trousers" when the crew member unlocked the door.
Before getting to the main course, the district court disposed of a few appetizer issues. First, the court precluded Aer Lingus from introducing testimony that the plaintiff and her mother previously were escorted from a concert for using counterfeit or stolen tickets, which led her to get a prescription for anxiety. The plaintiff agreed to permit testimony about preexisting anxiety issues, and general testimony about an event in 2017 that led to her anxiety, but objected to any evidence detailing the underlying incident. The court agreed, holding the evidence/testimony regarding the counterfeit tickets inadmissible on the basis that Aer Lingus was using it to show a propensity for dishonesty.
Second, the court limited Aer Lingus' ability to refute the plaintiff's factual allegations by pointing to lack of any evidence or testimony from another passenger, or any doctor other than the plaintiff's expert. The court held that Aer Lingus could argue generally as to the insufficiency of the plaintiff's evidence. It could not argue, however, that the lack of any photographs or testimony from other passengers of such an extraordinary event evidenced that it did not happen as the plaintiff alleged. Aer Lingus similarly could argue as to the lack of medical evidence but could not argue that the lack of testimony from any treating physician indicated that the plaintiff was lying about her injuries.
Getting now to the main course, Aer Lingus argued that the plaintiff (1) could not establish a "bodily injury" as required under Article 17 of the Montreal Convention, and (2) could recover for emotional distress only to the extent it was caused by a bodily injury. Until the Sixth Circuit's decision in Doe v. Etihad, few questioned that the Montreal Convention allowed recovery for emotional injury only when caused by a bodily injury, as this was the rule adopted by many courts under the Warsaw Convention, and the Montreal Convention did not substantively change the language of Article 17.
In becoming the second court to reject the causation requirement, the district court relied upon two key flaws in Aer Lingus' arguments:
- Aer Lingus argued that the plaintiff's position ignored that the Montreal Convention drafters tried wherever possible to retain the language of the Warsaw Convention with the purpose of not disrupting existing jurisprudence. In rejecting this argument, the court looked at Ehrlich v. American Airlines, Inc., 360 F.3d 366 (2d Cir. 2004), one of the most frequently cited cases on this issue. In Ehrlich, the Second Circuit deemed the language of Article 17 ambiguous on this issue. For that reason, the appellate court looked to the purpose of the Warsaw Convention (the operative treaty for that case). Noting that the Warsaw Convention's purpose was to protect air carriers and foster a new industry rather than provide a full recovery to injured passengers, the Second Circuit held that "[b]y reading Article 17 in a narrow fashion to preclude a physical injury from exposing a carrier to liability for unrelated mental injuries, we respect that legislative choice." Unlike the Warsaw Convention, the purpose of the Montreal Convention was to provide passengers with a full recovery. Thus, the district court found that the rationale in Ehrlich actually weighs against a causation requirement for recovery of emotional injury.
- Aer Lingus argued that "jettisoning the causal link requirement would effectively nullify the Supreme Court's holding in Eastern Airlines, Inc. v. Floyd." However, the district court determined that the Supreme Court in Floyd "explicitly declined to decide whether, as in Oshana's case, a plaintiff may recover for 'mental injuries that are accompanied by physical injuries.'"
The district court also held that the plaintiff's claims of bruising to her arm and hips as a result of hitting the arm rest when being pushed into her seat were sufficient to send the bodily injury issue to a jury. Adding the Northern District of Illinois' decision here to the Sixth Circuit's decision in Doe v. Etihad, it appears that the aviation industry now has a serious fight as to whether emotional injuries are recoverable under the Montreal Convention as long as there is an accompanying bodily injury. This, of course, is potentially significant, as one can imagine an array of minor bodily injuries that passengers may claim to support a potentially significant emotional injury. On a more positive note, the Central District of California went the opposite way on this issue in Bandary v. Delta Air Lines, Inc., 2019 U.S. Dist. LEXIS 232295 (C.D. Cal. Oct. 11, 2019).
Oshana v. Aer Lingus Limited, 2022 U.S. Dist. LEXIS 8176 (N.D. Ill. Jan. 12, 2022).
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