Vuksanovich v. Airbus Americas, Inc.
| Decision Date | 23 June 2022 |
| Docket Number | 21 Civ. 3454 (KPF), 21 Civ. 3487 (KPF) |
| Parties | Kristi VUKSANOVICH and Mark Vuksanovich, Plaintiffs, v. AIRBUS AMERICAS, INC., Airbus S.A.S., and Airbus Americas Engineering, Inc., Defendants. Amysue Salvatore and Michael F. Salvatore, Plaintiffs, v. Airbus Americas, Inc., Airbus S.A.S., and Airbus Americas Engineering, Inc., Defendants. |
| Court | U.S. District Court — Southern District of New York |
Anna Shapiro, Diane K. Nordbye, Shapiro Law Group, PC, Woburn, MA, Benjamin Henry Duggan, Kathy Jo Cook, Timothy Wilton, KJC Law Firm, LLC, Boston, MA, John Titus Martin, Keches Law Group, P.C., Worcester, MA, Ryan O'Neill, Law Offices of Mark Sherman, LLC, Stamford, CT, for Plaintiffs in 21 Civ. 3454 (KPF).
Anna Shapiro, Diane K. Nordbye, Shapiro Law Group, PC, Woburn, MA, Benjamin Henry Duggan, Kathy Jo Cook, Timothy Wilton, KJC Law Firm, LLC, Boston, MA, Ryan O'Neill, Law Offices of Mark Sherman, LLC, Stamford, CT, for Plaintiffs in 21 Civ. 3487 (KPF).
Christopher Odell, Arnold & Porter Kaye Scholer LLP, Houston, TX, Diana Katherine Sterk, Margaret Anne Rogers, Arnold & Porter Kaye Scholer LLP, New York, NY, David J. Weiner, Arnold & Porter Kaye Scholer LLP, Washington, DC, for Defendant Airbus Americas, Inc.
Christopher Odell, Arnold & Porter Kaye Scholer LLP, Houston, TX, Diana Katherine Sterk, Arnold & Porter Kaye Scholer LLP, New York, NY, for Defendant Airbus S.A.S. in 21 Civ. 3454 (KPF).
Diana Katherine Sterk, Arnold & Porter Kaye Scholer LLP, New York, NY, for Defendants Airbus S.A.S. in 21 Civ. 3487 (KPF).
Plaintiffs Kristi Vuksanovich and Amysue Salvatore are former JetBlue flight attendants; each alleges long-term physical and neurological health conditions as a consequence of their prolonged exposure to toxic fumes in the passenger cabins of airplanes manufactured by Defendants Airbus Americas, Inc. and Airbus S.A.S. (together, "Airbus," or "Defendants").1 For these injuries, Mrs. Vuksanovich and Mrs. Salvatore each brought suit against Defendants, asserting claims sounding in strict products liability, negligence, and breach of warranty. Their spouses, Plaintiffs Mark Vuksanovich and Michael Salvatore (together with Mrs. Vuksanovich and Mrs. Salvatore, "Plaintiffs"), also assert derivative claims against Defendants for damages based on loss of consortium. Defendants now move to dismiss these two consolidated actions pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that Plaintiffs’ claims are time-barred and inadequately pleaded.
For the reasons outlined below, the Court finds that Mr. and Mrs. Salvatore's claims are time-barred and thus dismisses all claims asserted in the Salvatore action. The Court concludes differently with respect to Mr. and Mrs. Vuksanovich, who have stated timely claims for strict products liability, negligence, breach of the implied warranty of merchantability, and loss of consortium. Mrs. Vuksanovich has not, however stated a claim for breach of express warranty.
These consolidated cases concern the allegedly defective design of the "bleed" air system used in the Airbus A320 family of commercial aircraft. (Vuksanovich SAC ¶¶ 6, 18; Salvatore SAC ¶¶ 5, 18). Defendants’ bleed air system consists of a network of ducts, valves, and regulators that draws compressed air from an aircraft's engine and pumps it directly into the passenger cabin. (Vuksanovich SAC ¶¶ 24-27; Salvatore SAC ¶¶ 24-27). The air that is "bled" from the aircraft's engine is used for several purposes, including cabin pressurization and air conditioning. (Vuksanovich SAC ¶¶ 27-28; Salvatore SAC ¶¶ 27-28). As a function of alleged design defects in the bleed air system, Airbus aircraft tend to experience "fume" events, or instances in which the air inside of the passenger cabin of an aircraft becomes contaminated with pyrolyzed compounds that are toxic to humans, such as engine oil, deicing fluid, or hydraulic fluid. (Vuksanovich SAC ¶¶ 25, 36; Salvatore SAC ¶¶ 25, 35). The bleed air system allows these toxic substances to contaminate cabin air during an airplane's normal operation, but the levels of toxins are especially high during fume events. (Vuksanovich SAC ¶ 32; Salvatore SAC ¶ 31).
Bleed air that enters the passenger cabin of an aircraft is neither filtered nor monitored for levels of airborne toxicants. (Vuksanovich SAC ¶ 38; Salvatore SAC ¶ 37). Among the contaminants that can infiltrate the cabin are byproducts of engine exhaust, such as carbon monoxide and carbon dioxide, as well as constituents of jet engine oil, hydraulic fluids, and deicing fluids, such as tricresyl phosphates
, which are a species of organophosphates and are known neurotoxins. (Vuksanovich SAC ¶¶ 39-43; Salvatore SAC ¶¶ 38-42). The presence of a sufficient amount of engine-related contaminants can sometimes produce a distinctive odor that has been described as a chemical, oily, or "dirty socks" smell. (Vuksanovich SAC ¶ 37; Salvatore SAC ¶ 36).
Mrs. Vuksanovich, a former flight attendant with JetBlue Airways Corporation, has flown on several A320 aircraft that were designed, manufactured, and assembled by Airbus. (Vuksanovich SAC ¶¶ 2, 10-14). She alleges experiencing myriad symptoms — some transient, others permanent — during and after certain flights that she took on Airbus aircraft. (Id. at ¶¶ 53, 60, 65, 79, 81, 88). As detailed below, some of her symptoms coincided with fume events that she experienced while on Defendants’ aircraft, while others arose without an apparent connection to a fume event.
Mrs. Vuksanovich alleges that her earliest symptoms manifested on June 16, 2017, during a round-trip flight between Boston and Dallas-Fort Worth. (Vuksanovich SAC ¶¶ 45-55). During this trip, Mrs. Vuksanovich, along with other members of the inflight crew and passengers, noticed an odor in the cabin that smelled like dirty socks or a wet dog. (Id. at ¶¶ 49-50). Upon landing in Dallas, Mrs. Vuksanovich called her husband and told him that she was not feeling well and that her throat felt like it was sunburned. (Id. at ¶ 51). On the return flight to Boston, the same smell persisted and grew in intensity. (Id. at ¶ 52). While working this flight, Mrs. Vuksanovich and other members of the inflight crew experienced symptoms including headache, nausea, stomach pain, a burning sensation in the throat, coughing, and shortness of breath. (Id. at ¶ 53). Following the flight, Mrs. Vuksanovich continued to suffer from severe nausea, headaches, burning in her throat, confusion, severe muscle weakness, fatigue, and anxiety. (Id. at ¶ 55). These symptoms subsided after approximately one week. (Id. ).
The following month, on July 7, 2017, Mrs. Vuksanovich experienced similar symptoms while working on a flight from Los Angeles to Boston. (Vuksanovich SAC ¶¶ 56-59). Shortly after takeoff, Mrs. Vuksanovich developed an intense headache, a sore throat, and a hoarse voice. (Id. at ¶ 59). As the flight continued, she experienced intense nausea, stomach pain, and a bloody nose. (Id. ). For approximately two weeks after the flight, Mrs. Vuksanovich was in pain and suffered from loss of voice, respiratory irritation, bronchial spasms
, anxiety, insomnia, headaches, diarrhea, loss of balance, coughing, wheezing, flu-like symptoms, tremors, extreme fatigue, memory loss, and muscle weakness. (Id. at ¶ 60).
Mrs. Vuksanovich was exposed to another fume event on August 29, 2017, while working on a flight from Boston to Portland. (Vuksanovich SAC ¶¶ 61-67). Prior to takeoff, Mrs. Vuksanovich and the other flight attendants on board observed a smoky, burning smell, which they initially thought was emanating from a fire on board the plane. (Id. at ¶ 64). Upon learning of the smell, the captain turned off the secondary engine, maneuvered the aircraft back to the gate, and requested that the plane undergo maintenance. (Id. at ¶ 66). While on this aircraft, Mrs. Vuksanovich's vision blurred to the point she was unable to read the placard above the aircraft boarding door. (Id. at ¶ 65). She does not allege experiencing any lingering symptoms following this flight.
On October 14, 2017, Mrs. Vuksanovich was again exposed to toxic cabin fumes while working on another JetBlue flight, after which she returned home feeling horribly ill. (Vuksanovich SAC ¶¶ 69-73). Following this flight, she could not speak properly, had widespread and severe pain throughout her body, was unable to follow a conversation, trembled in her sleep, experienced jerks and tremors in her arms, had trouble walking, and had persistent splitting headaches that completely whitened her vision. (Id. at ¶ 72).
Mrs. Vuksanovich sought medical attention for migraines in November 2017. More specifically, on November 7, 2017, Mrs. Vuksanovich was treated by a doctor who observed that she was displaying symptoms of chemical and environmental sensitivity, severe fatigue, neurocognitive deficits, and anxiety. (Vuksanovich SAC ¶ 81). This doctor indicated that these symptoms were associated with exposure to toxic fumes while working. (Id. ). Approximately three weeks after seeing this doctor, Mrs. Vuksanovich saw a functional medicine doctor who diagnosed her with organophosphate poisoning
. (Id. at ¶ 82). In the ensuing months, an expert physician confirmed that the toxic fumes to which she had been exposed had caused her long-term health effects, which results were confirmed through an October 2018 SPECT scan. (Id. at ¶ 83). Additionally, in July 2018, Mrs. Vuksanovich received a test measuring the level of serum-derived autoantibodies in her blood — a possible indicator of nerve damage — which revealed that she had been afflicted with a chronic nervous system injury. (Id. at ¶ 84).
In light of her condition, Mrs. Vuksanovich's doctors provided her with specific medical protocols to follow while flying. (Vuksanovich SAC ¶ 78). She followed these instructions...
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