McCaskey v. Continental Airlines, Inc.

• Decision Date: 17 August 2001
• Docket Number: No. CIV A G-00-572.,CIV A G-00-572.
• Citation: McCaskey v. Continental Airlines, Inc., 159 F.Supp.2d 562 (S.D. Tex. 2001)
• Parties: Mary McCASKEY, Individually and as Widow, Heir and the Personal Representative of the Estate of Ralph McCaskey Plaintiff, v. CONTINENTAL AIRLINES, INC., et al. Defendants.
• Court: U.S. District Court — Southern District of Texas

159 F.Supp.2d 562

Mary McCASKEY, Individually and as Widow, Heir and the Personal Representative of the Estate of Ralph McCaskey Plaintiff, v. CONTINENTAL AIRLINES, INC., et al. Defendants.

No. CIV A G-00-572.

United States District Court, S.D. Texas, Galveston Division.

August 17, 2001.

COPYRIGHT MATERIAL OMITTED

Steven E Holden, Attorney at Law, Michael S Ashworth, Attorney at Law, Bruce A McKenna, Attorney at Law, Tulsa, OK, for Mary McCaskey, Ralph McCaskey, The Estate of, plaintiffs.

Nicholas E Zito, Ramey Chandler et al, Houston, TX, James Richard Watkins, Royston Rayzor et al, Galveston, TX, for Continental Airlines Incorporated, John Doe Pilot, Gordon Bethune, defendants.

William Lee Maynard, Beirne Maynard & Parsons, Houston, TX, for John Doe Physician aka Douglas Dang, Dr., defendants.

Mary C Harlan Brooksby, Goodwin Raup PC, Phoenix, AZ, Stephen Robert Lewis, Jr, Lewis & Williams, Galveston, TX, William Lee Maynard, Beirne Maynard & Parsons, Houston, TX, for Medaire, defendant.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

KENT, District Judge.

Plaintiff brings this lawsuit based upon the October 10, 1998 death of her husband which followed a stroke he suffered on September 24, 1998. Now before the Court are Motions for Summary Judgment filed by Defendant Continental Airlines, Inc. ("Continental"), Defendant Erik Moerman ("Captain Moerman"), Defendant Gordon Bethune ("Bethune") and Defendant MedAire, Inc. ("MedAire").¹ For the reasons stated below, Continental's Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART and Captain Moerman's Motion for Summary Judgment is likewise GRANTED IN PART and DENIED IN PART. Bethune's Motion for Summary Judgment is GRANTED. MedAire's Motion for Summary Judgment is GRANTED.

I. BACKGROUND

On September 24, 1998, Plaintiff, Mary McCaskey, and her husband, Ralph McCaskey, were to travel on Continental Airlines from their home in Tulsa, Oklahoma to Frankfurt, Germany.² In order to reach Frankfurt, the McCaskeys were scheduled to fly from Tulsa to Houston, Texas. They were then scheduled to board Continental Flight 50 from Houston to Frankfurt with a stopover in Newark, New Jersey. However, the Tulsa to Houston flight was delayed such that the McCaskeys were unable to board the Frankfurt bound aircraft in Houston. Instead, they boarded Continental Flight 1476 bound for Newark, from which point they were scheduled to literally "catch" their international flight to Frankfurt, which was waiting on the ground in Newark with a scheduled departure time of 8:05 p.m.³

While in Houston, Mrs. McCaskey alleges that she and her husband were treated rudely by a Continental gate attendant who forcefully ripped apart their boarding passes, exchanging them for new ones, while also advising the couple that they would not be seated together on their flight from Newark to Frankfurt. The combination of their initial flight delay, along with the various examples of poor treatment received in Houston, is said to have caused both Mrs. McCaskey and her husband severe stress.

The McCaskeys did ultimately board Flight 1476 in Houston. They were seated together in Row 8. At some point, either shortly before or shortly after pushing away from the gate, Plaintiff alleges that it was "very warm" aboard the aircraft. Specifically, Mrs. McCaskey testified in her deposition that "[b]efore we took off, when we were seated on the plane, there was a problem with the air-conditioning. And they announced that they were working on the air-conditioning problem and that hopefully that they would know fairly soon if it was going to be, you know fixed."⁴ Mrs. McCaskey further testified by affidavit that "the plane started to become very, very hot. Ralph and I were perspiring."⁵

First Officer Charles Yeagle explained in his deposition that it was a warm, sunny day in Houston, and that upon pushing back from the gate the cockpit received an "over temp" warning from a sensor on the right wing. An over temp warning indicates that the outer skin of the aircraft has become overheated. Continental's testimony indicates that the combination of the sun heating the aircraft and the heat generated by the right "air pack" likely caused this condition.⁶ As a consequence, the crew had to shut down airflow into the cabin in order to correct the problem. Although this over temp problem may not have been caused by a malfunctioning air pack per se, it seems undisputed that the crew did have to shut down the aircraft's cooling system for some indeterminate period of time, during which time the aircraft almost surely heated at least somewhat.⁷

Continental, however, downplays the significance of the over temp problem and any related heating of the aircraft. According to Continental, upon receiving a "wing body" over temp signal in the cockpit, the crew simply switched from the overheating air pack on the right wing to an air pack on the left wing. Continental argues that this provides the same flow of air through the aircraft. However, First Officer Yeagle's testimony, on which Continental bases its argument, is not so unequivocal. When asked if the left wing air pack would provide the same air flow, First Officer Yeagle responded "basically."

Shortly thereafter, ground maintenance successfully advised the crew how to correct the over temp condition, and the plane entered the line for take off. Defendants argue that, despite any alleged problems, Flight 1476 was "wheels up" in twenty-six minutes, which was just six more minutes than the average time for Continental 737 flights in Houston during the year 1998. Nonetheless, Captain Moerman agreed during his deposition that it was fair to estimate that the departure of Flight 1476 was delayed ten to twenty minutes due to the over temp situation.

Tragically, sometime after departing Houston on Flight 1476, Plaintiff's husband, Ralph McCaskey, suffered a stroke. The evidence is highly convoluted on where precisely the aircraft was when Mr. McCaskey began to exhibit symptoms. Plaintiff has introduced some testimony that it occurred as soon as thirty minutes after departure and thus presumably over Texas or Louisiana. Other persons have generally placed the aircraft over Mississippi or somewhere near Atlanta, Georgia.⁸

Upon Mr. McCaskey's beginning to exhibit stroke-like symptoms, the Continental crew requested the assistance of any persons aboard with medical training. Two passengers came forward to assist, including a registered nurse who appears to have taken control of the situation. Additionally, as is common in the airline industry, Continental had a contract with a company, here Defendant MedAire, to provide medical advice in the event of in-flight medical emergencies. MedAire employs physicians who, based upon the information provided to them, assess the medical situation from afar. MedAire then makes recommendations to the flight crew regarding care of the ill traveler and possible flight diversions. On September 24, 1998, as much as twenty-five minutes after Mr. McCaskey's symptoms became manifest, Continental contacted MedAire and sought and received advice regarding how to proceed in light of Mr. McCaskey's medical situation.⁹

Captain Moerman first spoke with a "communications specialist" with MedAire. The Captain advised MedAire that a 78-year-old male aboard the aircraft "may have suffered a slight stroke." Captain Moerman further advised MedAire that Flight 1476 was en route to Newark and provided the estimated arrival time. MedAire then inquired about Mr. McCaskey's symptoms, at which point Captain Moerman deferred to the nurse who had been attending Mr. McCaskey.¹⁰

MedAire then patched the nurse through to Dr. Douglas Dang ("Dr. Dang" or "Doctor").¹¹ The nurse began by describing Mr. McCaskey's symptoms to the Doctor. She indicated that his right side was weak, and his pupils were a bit dilated. Further, Mr. McCaskey had some right side facial drooping. Mr. McCaskey could not speak much, but was responding with yes or no head movements when asked questions. The nurse also informed Dr. Dang that Mr. McCaskey had a history of heart problems but that he did not have high blood pressure or diabetes. At this point, Mr. McCaskey had been placed on oxygen.¹² His pulse rate was 70 to 80 and regular.

Dr. Dang immediately acknowledged the possibility that Mr. McCaskey had suffered a stroke or possibly a transient ischemic attack. The Doctor asked where the aircraft was presently located, but, perhaps crucially, did not receive an answer. Then, Dr. Dang suggested that the crew "kind of watch him a little and see if he gets worse or better." The Doctor then authorized the release of the medical kit so that Mr. McCaskey's blood pressure could be taken and his symptoms reevaluated. Some period of time then passed, after which the nurse and Dr. Dang again spoke. The nurse provided the blood pressure readings and indicated that Mr. McCaskey's condition was "about the same."

At this point, Dr. Dang informed the nurse, but notably not the flight crew, that he believed the aircraft was only about 45 minutes from Newark and that they should continue to observe Mr. McCaskey and give him some aspirin. Dr. Dang further indicated that "I don't think we need to divert the flight." Captain Moerman acknowledges that if Dr. Dang believed the aircraft to have been only forty-five minutes from Newark the Doctor was incorrect.

After this, Dr. Dang again spoke with Captain Moerman. The Doctor indicated that Mr. McCaskey would likely be okay, but recommended expediting arrival into Newark. MedAire would arrange to have medical personnel waiting at the gate. Thus, Flight 1476 continued on to its planned destination of Newark, New Jersey.

The decision on whether to divert or proceed was unquestionably the Captain's. He could have overridden a MedAire recommendation. However, it seems unquestioned that the Captain was not...