Safa v. Deutsche Lufthansa Aktiengesellschaft, Inc.

• Decision Date: 28 August 2014
• Docket Number: No. 12–cv–2950 ADSSIL.,12–cv–2950 ADSSIL.
• Citation: 42 F.Supp.3d 436
• Parties: Jamal M. SAFA, Plaintiffs, v. DEUTSCHE LUFTHANSA AKTIENGESELLSCHAFT, INC., a foreign corporation, Defendant.
• Court: U.S. District Court — Eastern District of New York

42 F.Supp.3d 436

Jamal M. SAFA, Plaintiffs

v.DEUTSCHE LUFTHANSA AKTIENGESELLSCHAFT, INC., a foreign corporation, Defendant.

No. 12–cv–2950 ADSSIL.

United States District Court, E.D. New York.

Signed Aug. 28, 2014.

Podhurst Orseck, P.A., by: Ricardo M. Martinez–Cid, Esq., of Counsel, Miami, FL, for the Plaintiff.

Nixon Peabody, by: Joseph J. Ortego, Esq., Thomas M. Mealiffe, Esq., of Counsel, Jericho, NY, for the Defendant.

MEMORANDUM OF DECISION AND ORDER

SPATT, District Judge.

On February 14, 2012, the PlaintiffJamal M. Safa(the “Plaintiff”) commenced this damages action under the Convention for the Unification of Certain Rules Relating to International Carriage by Air, concluded at Montreal, Canada, on May 28, 1999(the “Montreal Convention”).The action was also brought under all relevant laws applicable or related thereto, including but not limited to the Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed at Warsaw on October 12, 1929(the “Warsaw Convention”), 49 U.S.C. § 1502 et seq., as amended by the Protocol to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed at The Hague on October 28, 1955.

On June 30, 2014, the DefendantDeutsche Lufthansa Aktiengesellschaft, Inc.(“Lufthansa”), a foreign corporation, moved pursuant to Federal Rule of Civil Procedure 56(“Fed. R. Civ.P.”) 56 for summary judgment dismissing the complaint in its entirety.

For the reasons set forth below, the motion for summary judgment is granted.

I.BACKGROUND

A.Factual History

Unless stated otherwise, the following facts are drawn from the parties' Rule 56.1 statements and exhibits submitted and construed in a light most favorable to the non-moving party, the Plaintiff.Triable issues of fact are noted.

1.Lufthansa Policies and Procedures for Medical Situations

Policies and procedures for how a Lufthansa flight crew should respond to a medical emergency are set forth in a Flight Safety Manual, with which cabin and cockpit crews are contractually obligated to be familiar.The cabin and cockpit crew are also trained on specific areas of the manual, including through web-based training with tests and live training.Some training is provided by Medifan, a company that specializes in medical training.

In November 2011, the time of the underlying events, the policies and procedures in place for Lufthansa flight crews in the event of a medical emergency were as follows: (1) the crew member who learns of the situation notifies the rest of the crew, including the purser, who is the leader of the cabin crew; (2) one crew member attends to the passenger; (3) another crew member retrieves the medical equipment and brings it to the scene; (4) the purser seeks medical expertise on board through the use of the Public Address system, and/or by checking the passenger list for a medical doctor in the event the doctor voluntarily disclosed his presence pursuant to a voluntary Lufthansa program; and (5) the purser then informs the cockpit crew of the incident.

If a doctor has been identified, the next steps are (1) the doctor is provided with the doctor's kit; (2) the crew assists the doctor to the extent they feel competent; (3) the crew asks the doctor(s) opinion with regard to the severity of the incident and his or her recommendation; and (4) the information conveyed by the doctor is relayed to the captain by the purser.

During the course of the medical event, the purser fills out an Emergency Report, which notes the symptoms present, and the treatment provided.In the event that doctors respond, those doctors that provide treatment are noted in the report.The report is not required to be provided to the pilot, as it is within the control of the purser during the flight, who is the intermediary with the doctor.

The Lufthansa Flight Safety Manual states, “[i]f possible, the emergency report should be completed by the doctor treating the patient.”Flight Safety Manual, General Part, 5.8.4[LUF001379].However, the Flight Safety Manual further instructs that if it is not possible for a doctor to complete the report, the crew is to complete certain sections, including noting the passenger's pulse, blood pressure, general appearance, and whether he or she has chest pain.Id.

In addition, International SOS (“ISOS”) provides a service to some Lufthansa aircraft, whereby a dispatch center is available by satellite phone, with medical personnel, such as nurses and paramedics, available, as well as a doctor on-call, who can speak with the crew on board the flight and assist in the gathering of information by the cabin crew so that decisions, including whether or not to divert the plane, can be made.At the time of the underlying incident, in November 2011, the Lufthansa policies and procedures with regard to medical emergencies and diversions did not require ISOS to be contacted when a doctor was present on board.

In addition, of relevance here, Section 5.8 of the Flight Safety Manual provides flight crews with information relating to the symptoms of “Angina Pectoris/Heart Attack,” with measures that could be taken if those symptoms presented themselves.These symptoms include “anxiety and tight feeling in the chest,”“restlessness and fear,”“shortage of breath,”“irregular pulse,” and “cold sweat.”The Flight Safety Manual instructs that nitroglycerin, otherwise known as nitrolingual, should be administered if a heart attack is suspected.Section 5.8 also states as follows:

If these measures do[ ] not indicate considerable recovery, an intermediate landing has to be planned.The situation is life-threatening, the possibility of a heart attack suggest itself.

Beyond the Flight Safety Manual, Lufthansa's training captain testified that Lufthansa pilots are taught that the above-mentioned symptoms “suggest[ ] a heart attack,” that the “suggestion of [a] heart attack is a life-threatening condition,” and that a “diversion has to be planned” where there is “a danger for life.”(Rolf Uzat Dep., at 32.)This is partly because, on board an aircraft, a number of medical functions—including blood tests or an Electrocardiogram—cannot be administered in response to a passenger having a heart attack.However, Lufthansa's medical director, Dr. Jürgen Graf, testified that the flight captain, rather than any doctors on board the aircraft, is ultimately responsible for any decision to divert.

2.The November 12, 2011 Incident

On November 12, 2011, the Plaintiff was scheduled to fly on Lufthansa Flight LH427 from Philadelphia to Beirut, Lebanon, with a layover in Frankfurt.The Plaintiff boarded the flight in Philadelphia and had Seat 35D, an aisle seat.Katja Poggenpohl(“Poggenpohl”) was the purser in charge of the Lufthansa Flight LH427.

Approximately three hours before landing in Frankfurt, Poggenpohl was alerted by a passenger of a potential problem with another passenger.Poggenpohl immediately approached the economy class cabin and found the Plaintiff lying in the aisle.The Plaintiff testified that, after he fell to the ground, he was almost unconscious, but remembers complaining of chest pain as he was moved to the galley or the rear of the aircraft.

Pursuant to Lufthansa procedure, Poggenpohl moved the Plaintiff to a safe location in the rear of the aircraft.Also, in accordance with Lufthansa procedure and training, the flight attendants gathered the on board emergency equipment and Poggenpohl made an announcement requesting medical assistance from any doctors on board.Two or three licensed physicians volunteered and cared for the Plaintiff—in particular, they took the Plaintiff's pulse and blood pressure; initiated an IV line to give the plaintiff an infusion of fluids; administered nitroglycerin, tramal, and metamizol; and attached a defibrillator to the Plaintiff.

One of the physicians was a specialist in intensive care and emergency medicine.However, none of the physicians were board-certified in cardiology.

The Plaintiff complained of pressure in his upper body and appeared sweaty, hyper, and afraid.Dr. Graf, who was not on board the flight, testified that the Plaintiff's complaints of chest pain, paleness, and cold sweats could have been indicative of a variety of conditions, including high blood pressure, a vasovagal episode, or anxiety.

The physicians reported, and Poggenpohl recorded on the emergency report, that the Plaintiff's pulse was 87, which the physicians told Poggenpohl was normal.However, in its Flight Safety Manual, Lufthansa instructs its employees that a normal pulse is between 60 and 80 beats per minute.The physicians also told Poggenpohl that the Plaintiff's blood pressure and heart rhythm were normal.

The Cosmic Report or CMR detail completed after the incident by Poggenpohl indicates that the on board physicians considered whether the Plaintiff was having a heart attack.Cosmic Report, Ex. 2 to Poggenpohl Dep. (“medical staff was not sure if he had a cardial infarction”).

While the physicians attended to the Plaintiff, Poggenpohl phoned the cockpit to alert the Captain, Gerhard Fischer, that there was a medical situation on board and that a passenger, the Plaintiff, was experiencing chest pressure, was pale, sweating, and was frightened.Fischer was provided with the Emergency Report, which reflected that the Plaintiff had chest pain and circulatory collapse, an elevated pulse, and was hyperventilating.Fischer was also told that the Plaintiff's symptoms included an “excited pulse, so a little bit more than [a] normal pulse.”(Fischer Dep.at 13.)Poggenpohl mistakenly told Fischer that a “cardiologist” was taking care of the Plaintiff.(Poggenpohl Dep.at 23.)

However, Fischer testified that he was not aware that the Plaintiff was experiencing chest pain, shortness of breath, cold sweats, or that he was hyperventilating.(Fischer Dep.at 45–46.)He testified that if he had known of these symptoms, he would have been more “intriguing[,] more...