United States District Court, E.D. New York
JAMAL M. SAFA, Plaintiffs,
DEUTSCHE LUFTHANSA AKTIENGESELLSCHAFT, INC., a foreign corporation, Defendant
For the Plaintiff: Ricardo M. Martinez-Cid, Esq., Of Counsel, Podhurst Orseck, P.A., Miami, FL.
For the Defendant: Joseph J. Ortego, Esq., Thomas M. Mealiffe, Esq., Of Counsel, Nixon Peabody, Jericho, NY.
MEMORANDUM OF DECISION AND ORDER
ARTHUR D. SPATT, United States District Judge.
On February 14, 2012, the Plaintiff Jamal 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 Defendant Deutsche 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.
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 Luftansa 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, Luftansa's medical director, Dr. Jürgen Graf, testified that ...