Sakaria v. Trans World Airlines

• Decision Date: 25 October 1993
• Docket Number: No. 92-1642,92-1642
• Citation: 8 F.3d 164
• Parties: 38 Fed. R. Evid. Serv. 47 Elpis SAKARIA, individually and as personal representative of the Estate of Jagdish Sakaria, Deceased; Alexander J. Sakaria; Raj J. Sakaria; Maria K. Sakaria, Children of Jagdish Sakaria, Deceased, Plaintiffs-Appellants, v. TRANS WORLD AIRLINES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 164

8 F.3d 164

38 Fed. R. Evid. Serv. 47

Elpis SAKARIA, individually and as personal representative

of the Estate of Jagdish Sakaria, Deceased; Alexander J.

Sakaria; Raj J. Sakaria; Maria K. Sakaria, Children of

Jagdish Sakaria, Deceased, Plaintiffs-Appellants, v. TRANS WORLD AIRLINES, Defendant-Appellee.

No. 92-1642.

United States Court of Appeals,

Fourth Circuit.

Argued March 3, 1993.

Decided Oct. 25, 1993.

Nicholas Hamner Cobbs, Law Offices of Nicholas H. Cobbs, Washington, DC, argued (Nicholas Gilman, Gilman, Olson & Pangia, on the brief), for plaintiffs-appellants.

John Niebrugge Romans, Katten, Muchin & Zavis, New York City, argued (Raymond L. Mariani, Katten, Muchin & Zavis, on the brief), for defendant-appellee.

Before ERVIN, Chief Judge, PHILLIPS, Circuit Judge, and HILL, Senior Judge of the United States Court of Appeals for the Eleventh Circuit, sitting by designation.

OPINION

PHILLIPS, Circuit Judge:

Around a day and a half after completing his flight as passenger on a TWA international flight from New York to Athens, Greece, Jagdish Sakaria died of a heart attack. His widow and children (the Sakarias) brought this diversity action against TWA seeking damages for his death under Maryland wrongful death and survival statutes and, by later procedural developments, under the Warsaw Convention, alleging that the death occurred as a result of trauma occasioned by events associated with a terrorist attack in the Rome airport during the TWA flight's intermediate stop there. The district court dismissed all the claims by summary judgment. We affirm, though on reasoning independent of the district court's.

I

Jagdish Sakaria decided to visit his children, then attending school in Greece and living there with his wife's parents, in December of 1985. Acting on his behalf, Mrs. Sakaria contacted TWA and requested a nonstop flight from New York to Athens prior to Christmas. The TWA international ticketing agent told her no such flights were available. When asked when the next available flight was, the agent referred her to Flight 840, on December 26. Although TWA's timetable lists Flight 840 as having a scheduled stopover (without saying where), TWA's agent made no mention of that fact, and Mrs. Sakaria didn't inquire about it. To take advantage of a coupon, Mrs. Sakaria and her husband purchased the ticket through a local travel agent later that same day. Neither ticket nor itinerary reflected the intermediate stop in Rome.

On December 26 Mr. Sakaria took Flight 840, and as it approached Rome's Fiumicino Airport on the morning of December 27, terrorists attacked the TWA ticket counter and embarkation area, leaving fourteen people dead and many others wounded. Consequently, Fiumicino flight control forbade Flight 840 to make its scheduled stop there, but when the plane was also denied permission to land at nearby Campino and its captain made clear that he lacked fuel to proceed further, Fiumicino flight control reconsidered and directed the plane to land and park on a remote section of the tarmac.

Once on the ground, the captain told his passengers of an "armed altercation" at the airport and warned them that the aircraft would be met by a security vehicle and held on the tarmac until it was safe to approach the terminal. One armored vehicle remained near the aircraft during this time, while another, together with a helicopter, patrolled at a distance. Within three or four minutes of landing the captain shut down the plane's engines and with them its air conditioning. Doors facing away from the terminal were opened for ventilation, but it became "close and warm" in the filled-to-capacity Boeing 747.

About two hours later, Flight 840's passengers were bussed to the terminal area and taken there to a makeshift waiting room. The terminal proper was sealed and patrolled by armed security personnel, though one passenger deposed that it would have been physically possible to leave the building housing their waiting room if the guards and their dogs had permitted it.

While in this waiting area, the passengers neither encountered terrorists, viewed the attack's aftermath, saw any bodies or attendant medical personnel, nor heard any sounds associated with the attack. In fact, those who deposed on the point perceived themselves to be in no danger at all. After about two hours in the holding area, Flight 840's passengers including Sakaria were bussed to the plane continuing Flight 840's service to Athens. They left the way they came in, not through the terminal proper, where the terrorist attack had taken place. At no time during Flight 840 did any passenger seek medical attention. Flight 840 continued on to Athens, arriving without further incident.

A family friend, Nick Bafitis, met Mr. Sakaria at the airport. Mr. Sakaria looked pale, yellow, and "terrified," with black circles under his swollen eyes. He held his throat and neck and complained of thirst while recounting his experience in Rome in angry, excited tones. ¹

Mr. Sakaria travelled with Bafitis to a home in Athens. During an evening with the Bafitis family, Mr. Sakaria ate nothing because he felt as if eating would make him vomit.

The following day Bafitis drove Mr. Sakaria the seven hours from Athens to Volos, the remote village where his children resided with his wife's parents. During the trip Mr. Sakaria continued to refuse food but drank great quantities of liquids. He remained upset and broke out in tears while describing his experience in Rome.

In Volos, Mr. Sakaria sought unsuccessfully to change his return ticket to another airline before continuing on to his in-laws' house. While there, he still refused to eat and several times broke out in tears while describing events in Rome. He retired early, and the following morning Mrs. Sakaria's parents found Mr. Sakaria dead in his bed. An autopsy identified the cause of death as acute myocardial infarction or, in layman's terms, a major heart attack. ² The Sakarias then brought this federal diversity action, alleging state law survival and wrongful death claims against TWA. Two theories were advanced. First, the Sakarias alleged that TWA had breached a contract with Sakaria to fly him from New York to Athens nonstop. Had it not done so, it was alleged, he never would have experienced the trauma caused him by Flight 840's landing in Rome. Second, the Sakarias alleged that TWA negligently had breached the duty of care it owed Sakaria by permitting Flight 840 to stop in Rome despite TWA's awareness that a terrorist act had occurred there. ³

In its answer, TWA denied it had contracted to fly Mr. Sakaria to Athens nonstop and denied any negligence. It also set up the Warsaw Convention, ⁴ as modified by the Montreal Agreement, ⁵ as an affirmative defense limiting its liability.

Following discovery, TWA sought summary judgment on all claims, contending that the causation element essential to each was unsupported by any admissible evidence because Mr. Sakaria's statements to Bafitis were inadmissible hearsay and the Sakarias' medical expert predicated his essential causation opinion on that hearsay. In addition, TWA submitted the deposition of a neurosurgeon, Spiridon Koulouris, who had examined Mr. Sakaria over the course of several years following a 1978 automobile accident that concededly had impaired his memory and left him permanently disabled from his job as an econometrician. Koulouris deposed that Mr. Sakaria heard nonexistent noises and was subject to hallucinations and confabulations. ⁶ In response to TWA's motion for summary judgment, the Sakarias submitted the Bafitis affidavit and another affidavit by Ayub Onmaya, a neurosurgeon who had examined Mr. Sakaria twice following his 1978 accident, both times before Koulouris began his four to six year interaction with Mr. Sakaria. Bafitis stated by affidavit that Mr. Sakaria's automobile accident had affected his memory but that he "had never known [Mr. Sakaria] to fabricate stories or to invent accounts of things that never happened." Onmaya opined that based on his diagnosis of Mr. Sakaria's condition "it [was] highly unlikely that Mr. Sakaria experienced delusions, hallucinations, or confabulations on the date of the [terrorist] incident" and concluded "to a reasonable degree of medical certainty" that "Mr. Sakaria's experience was based on reality."

The district court referred the case to a magistrate judge, who concluded that "[t]he overwhelming evidence in this case indicates that the events at issue did not occur as [Mrs. Sakaria] contends" and recommended that summary judgment for TWA be granted. In reaching this conclusion, the magistrate judge refused to consider the alleged statements by Mr. Sakaria recounted in the Bafitis affidavit, concluding that they were "uncorroborated hearsay ... bearing no guarantees of trustworthiness." She also denied the parties a hearing and recommended rejection of the Sakarias' request for additional discovery and leave to amend their complaint to state expressly a cause of action under the Warsaw Convention.

The Sakarias objected to the magistrate judge's report, including its refusal to consider a Warsaw Convention claim, and requested a hearing. TWA countered their objections and opposed the hearing. The district court granted summary judgment to TWA after denying oral argument on the grounds that it "would not assist the court in understanding, or deciding, the issues presented." Essentially adopting the magistrate judge's recommendations, the court concluded that on the material facts not genuinely in issue, the Sakarias' state law wrongful death and survival claims failed as a matter of law. The specific contract breach alleged, of failure to fly non-stop to Athens, did not occur; TWA flew Mr. Sakaria exactly as scheduled, to Athens with an intermediate stop at Rome. There was no negligence in not having enough fuel to overfly Rome, because that was a scheduled stop....