Nicoline Ambe et al v. Air France, SA

Filing 121

ORDER RE: MOTIONS FOR SUMMARY JUDGMENT, [Dkt. 94, 95] by Judge Dean D. Pregerson: Plaintiffs bear the burden of proving the elements of their case. They have cited no admissible evidence to establish that an accident, as defined under the Montreal C onvention, led to Decedents death. Plaintiffs have therefore failed to show that there is a genuine issue for trial, let alone that summary judgment in their favor is warranted. Accordingly, for the reasons stated above, Defendants Motion for Summary Judgement is GRANTED. Plaintiffs motion is DENIED. IT IS SO ORDERED. MD JS-6. Case Terminated. (shb)

Case 2:17-cv-08719-DDP-E Document 121 Filed 08/10/21 Page 1 of 15 Page ID #:3446

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JS-6

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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NICOLINE AMBE,individually,
and THE ESTATE OF THE
DECEDENT NDIFORCHU ALFRED
TAMUNANG, by administrator
NICOLINE AMBE; SUZY ANJIM
NDIFORCHU; BLAFANWI
NDIFORCHU; BOBBI AMANG
NDIFORCHU; CHO MOFOR
NDIFORCHU; SARAH NGWE GEH

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Case No. 2:17-CV-08719 DDP-E
ORDER RE: MOTIONS FOR SUMMARY
JUDGMENT
[Dkt. 94, 95]

Plaintiffs,

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v.
AIR FRANCE, S.A., a French
public limited company; and
DOES 1-50.

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Defendant.

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Presently before the court are cross motions for summary

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judgment filed by Plaintiffs (Dkt. 94) and Defendant Air France,

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S.A. (“Air France”) (Dkt. 95).

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of the parties, the court GRANTS Air France’s motion, DENIES

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Plaintiffs’ motion, and adopts the following Order.

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I.

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Having considered the submissions

Background
On December 7, 2015, Ndiforchu Alfred Tamunang (“Decedent”)

died on an Air France flight from Los Angeles to Paris.

(Third

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Amended Complaint ¶ 22.)

At the start of the flight’s descent into

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Paris, flight attendants discovered Decedent stretched out across

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three seats.

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Decedent’s eyes were rolled back, he was not breathing, and he had

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no pulse.

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attempted to resuscitate Decedent through the use of an automatic

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external defibrillator, cardiac massage, a balloon ventilator,

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oxygen, and the injection of “pysiological serum,” to no avail.1

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(Id.)

(Declaration of Sarah Passeri, Ex. A at 4.)

(Id.)

Five flight attendants, including a nurse,

Cockpit personnel immediately informed the control tower to

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request priority landing and the immediate assistance of French

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emergency medical technicians.

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French medical personnel on the ground took over resuscitative

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efforts from flight attendants, but declared Decedent dead on the

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plane a few minutes later.

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The U.S. State Department’s Report of Death of U.S. Citizen Abroad

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indicates that Decedent died of “Natural causes,” as certified by a

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French doctor from the Charles de Gaulle Airport Medical Unit and

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registered with French authorities the day after Decedent’s death.

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(Passeri Decl., Ex. M.)

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(Passeri Decl., Ex. C at 11.)

(Passeri Decl. Ex. A at 4, C at 11.)

Plaintiffs’ Third Amended Complaint, however, alleges that an

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autopsy, conducted approximately 6 weeks later in Cameroon,

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determined that Decedent’s cause of death was “accidental

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aspyhxiation.”

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action for strict liability and negligence against Air France,

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pursuant to the Convention for the Unification of Certain Rules

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Relating to International Carriage by Air, May 28, 1999, S. Treaty

(TAC ¶ 29.)

Plaintiffs’ TAC alleges causes of

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There appears to be no dispute that this term refers to
saline.
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Doc. No. 106–45 (“Montreal Convention”).

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now each move for summary judgment.

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II.

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Plaintiffs and Air France

Legal Standard
Summary judgment is appropriate where the pleadings,

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depositions, answers to interrogatories, and admissions on file,

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together with the affidavits, if any, show “that there is no

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genuine dispute as to any material fact and the movant is entitled

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to judgment as a matter of law.”

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seeking summary judgment bears the initial burden of informing the

Fed. R. Civ. P. 56(a).

A party

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court of the basis for its motion and of identifying those portions

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of the pleadings and discovery responses that demonstrate the

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absence of a genuine issue of material fact.

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Catrett, 477 U.S. 317, 323 (1986).

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the evidence must be drawn in favor of the nonmoving party.

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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 242 (1986).

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moving party does not bear the burden of proof at trial, it is

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entitled to summary judgment if it can demonstrate that “there is

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an absence of evidence to support the nonmoving party’s case.”

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Celotex, 477 U.S. at 323.

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See Celotex Corp. v.

All reasonable inferences from
See
If the

Once the moving party meets its burden, the burden shifts to

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the nonmoving party opposing the motion, who must “set forth

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specific facts showing that there is a genuine issue for trial.”

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Anderson, 477 U.S. at 256.

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party “fails to make a showing sufficient to establish the

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existence of an element essential to that party’s case, and on

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which that party will bear the burden of proof at trial.”

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477 U.S. at 322.

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that a reasonable jury could return a verdict for the nonmoving

Summary judgment is warranted if a

Celotex,

A genuine issue exists if “the evidence is such

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party,” and material facts are those “that might affect the outcome

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of the suit under the governing law.”

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There is no genuine issue of fact “[w]here the record taken as a

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whole could not lead a rational trier of fact to find for the

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nonmoving party.”

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Corp., 475 U.S. 574, 587 (1986).

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Anderson, 477 U.S. at 248.

Matsushita Elec. Indus. Co. v. Zenith Radio

It is not the court’s task “to scour the record in search of a

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genuine issue of triable fact.”

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1278 (9th Cir. 1996).

Keenan v. Allan, 91 F.3d 1275,

Counsel have an obligation to lay out their

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support clearly.

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1026, 1031 (9th Cir. 2001).

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file for evidence establishing a genuine issue of fact, where the

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evidence is not set forth in the opposition papers with adequate

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references so that it could conveniently be found.”

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III.

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Carmen v. San Francisco Sch. Dist., 237 F.3d
The court “need not examine the entire

Id.

Discussion
Under Article 17 of the Montreal Convention, an air “carrier

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is liable for damage sustained in case of death or bodily injury of

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a passenger upon condition only that the accident which caused the

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death or injury took place on board the aircraft or in the course

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of any of the operations of embarking or disembarking.”

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Convention, art. 17.

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Decedent’s death resulted from an “accident.”

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Montreal

The dispositive question here is whether

It is well established that, for purposes of the Montreal
Convention, an injury arises from an accident “only if a
passenger’s injury is caused by an unexpected or unusual event

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or happening that is external to the passenger.”2

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v. Saks, 470 U.S. 392, 405 (1985); Phifer v. Icelandair, 652

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F.3d 1222, 1224 (9th Cir. 2011).

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indisputably results from the passenger’s own internal

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reaction to the usual, normal, and expected operation of the

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aircraft, it has not been caused by an accident . . . .”

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Saks, 470 U.S. at 406; Caman v. Cont’l Airlines, Inc., 455

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F.3d 1087, 1089 (9th Cir. 2006).

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Montreal Convention claim bears the burden of showing that an

Air France

“But when the injury

A Plaintiff bringing a

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accident occurred.

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416 F. Supp. 3d 1030, 1043 (D. Haw. 2019).

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A.

See Armstrong v. Hawaiian Airlines, Inc.,

Cause of Death

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Here, French medical authorities determined that Decedent
died of “[n]atural causes.”

Such an injury, if suffered in

the usual course of aircraft operations, would not, of course,
constitute an “accident.”

Plaintiffs attempt to carry their

burden, or to at least create a genuine dispute of fact as to
the cause of Decedent’s death, by arguing that their own
motion for summary judgment “proved” that Decedent died not of
natural causes, but rather by “accidental asphyxia.”3
(Plaintiffs’ Opposition to Air France MSJ at 5.)
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In Montreal Convention cases, courts regularly apply
principles applicable to the Montreal Convention’s predecessor,
Convention for the Unification of Certain Rules Relating to
International Transportation by Air (“Warsaw Convention”)”, October
12, 1929, 49 Stat. 3000, 137 L.N.T.S. See Narayanan v. British
Airways, 747 F.3d at 1127 n.2.
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Needless to

Although Plaintiffs’ Opposition (Dkt. 101) to Air France’s
Motion for Summary Judgment is captioned correctly, each page of
Plaintiffs’ Opposition is labeled “Memorandum of Points and
Authorities ISO Plaintiffs’ MSJ.”
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say, Plaintiffs’ Motion for Summary Judgment is not evidence.

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More importantly, however, Plaintiffs’ theory as to

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“accidental asphyxia” is not supported by any admissible

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evidence.

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1.

Dr. Wanji

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Plaintiffs’ asphyxiation theory is based primarily upon
the declaration of non-retained expert Dr. Wanji Rene (“Dr.
Wanji”), produced for the first time in connection with
Plaintiff’s motion.

Dr. Wanji’s declaration is accompanied by

a two-page autopsy report ostensibly conducted in Cameroon six
weeks after Decedent’s death.

Dr. Wanji’s opinion is

inadmissible for several reasons.

First, Dr. Wanji never

produced a written report, as required under Federal Rule of
Procedure 26(a)(2)(B) of all experts “retained or specially
employed to provide expert testimony.”

Plaintiff’s only

explanation is that Dr. Wanji is a non-retained expert.
Courts, however, do not necessarily exempt experts from Rule
26(a)(2)(B) simply on the basis of counsel’s designation.
See, e.g., Burreson v. BASF Corp., No. 2:13-CV-0066 TLN AC,
2014 WL 4195588, at *4 (E.D. Cal. Aug. 22, 2014); cf. Goodman
v. Staples The Off. Superstore, LLC, 644 F.3d 817, 826 (9th
Cir. 2011) (“[A] treating physician is only exempt from Rule
26(a)(2)(B)’s written report requirement to the extent that
his opinions were formed during the course of treatment.”).
Indeed, Dr. Wanji’s declaration states that he reviewed
documents produced in the course of this litigation, which
were presumably provided to him by Plaintiffs’ counsel.
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(Wanji Decl. ¶ 4.)

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of Dr. Wanji’s relationship to or interactions with Plaintiffs

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or their counsel.

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The declaration is silent as to the nature

(Wanji Decl. ¶ 4.)

Second, even assuming that Rule 26(a)(2)(B) does not
apply to Dr. Wanji, Rule 26(a)(2)(C) does.

Rule 26(a)(2)(C)

requires an expert disclosure to state (1) “the subject matter
on which the witness is expected to present evidence” and (2)
“a summary of the facts and opinions to which the witness is
expected to to testify.”

Fed. R. Civ. P. 26(a)(2)(C).

Plaintiffs’ disclosure, which stated only that Dr. Wanji “may
provide expert testimony with regards to his autopsy report,
medical facts and opinions concerning examination, diagnosis,
results of the autopsy [sic] . . .” complied with only the
first of these prescriptions, and can hardly be said to
comprise a summary of Dr. Wanji’s opinion that Decedent died
of accidental asphyxiation resulting from the ingestion of a
cork.

Plaintiffs may not, therefore, rely upon the Wanji

Declaration to support or oppose the instant motions for
summary judgment.

See Fed. R. Civ. P. 37(c)(1).

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Even putting aside Rule 26 disclosure issues, Dr. Wanji’s
declaration does not meet the standards of admissibility
imposed by Federal Rule of Evidence 702.

Trial courts have a

gatekeeping function regarding expert testimony.

Daubert v.

Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 n.7
(1993).

Where “scientific, technical, or other specialized

knowledge will assist the trier of fact” to understand
evidentiary or factual issues, an expert witness who is
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qualified by “knowledge, skill, experience, training, or

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education” may “testify thereto in the form of an opinion or

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otherwise.”

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testimony has the burden of establishing that the relevant

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admissibility requirements are met by a “preponderance of the

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evidence.”

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United States, 483 U.S. 171, 175 (1987)).

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flexible inquiry tied to the facts of the particular case to

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make determinations regarding the reliability of expert

Fed. R. Evid. 702.

The proponent of the expert

Daubert, 509 U.S. at 592 n.10 (citing Bourjaily v.
Courts employ a

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testimony.

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152 (1999).

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methodology, not on the conclusions they generate.”

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509 U.S. at 595; see also Fed. R. Evid. 702 Adv. Comm. Note to

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2000 Amdt.

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sufficient foundation for expert testimony, so long as the

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witness explains “how that experience leads to the conclusion

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reached, why that experience is a sufficient basis for the

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opinion, and how that experience is reliably applied to the

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facts.”

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Amdt.

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Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137,
The focus should be “solely on principles and
Daubert,

An expert’s experience alone can provide a

Fed. R. Evid. 702 Advisory Committee Note to 2000

Dr. Wanji’s declaration falls short of Rule 702 standards
in numerous respects.

First, the only evidence of Dr. Wanji’s

qualifications is his own statement that he is “a medical
doctor and pathologist with over 20 years of experience.”
(Wanji Decl. ¶ 1.)

There is no indication that Dr. Wanji has

any particular expertise in asphyxiation, or indeed that he
has ever conducted an autopsy other than that of Decedent.

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Nor do Plaintiffs respond in any way to Air France’s

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contention that Dr. Wanhji is, in fact, a neonatologist.

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Second, although Dr. Wanji’s declaration states that “multiple

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other instructions not followed are procedures which would

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have greatly enhanced to . . . over 80% [Decedent’s] chance of

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surviving . . .,” he provides no methodology to explain such a

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conclusion.

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declaration that Decedent was “in good health and great shape”

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when he boarded the plane is inconsistent with Dr. Wanji’s own

The court notes further that Dr. Wanji’s

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autopsy report, which stated that Decent was “thin, frail,”

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and had “poor dentition with evidence of remote missing

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teeth,” with apparent history of a tracheal tube and a “G-

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tube.”

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qualifications, experience, and methodology, his declaration

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and report are not sufficiently reliable, and are not

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admissible under Rule 702.

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Given these questions about Dr. Wanji’s

2.

Dr. Nsahlai

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Plaintiffs also rely upon the declaration and report of
Christiane Nsahlai (“Dr. Nsahlai.”) Dr. Nsahlai submitted an
expert report opining that Decedent died of “accidental
asphyxia,” that his death “was an unusual or unexpected event
that was external to him,” and that Air France did not follow
its own medical protocols.
are also not admissible.

Dr. Nsahlai’s opinions, however,
As an initial matter, and

notwithstanding Plaintiffs’ counsel’s attempt to prevent Dr.
Nsahlai from answering questions concerning her relationship
to counsel, with whom she shares a last name, it is now clear
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that Dr. Nsahlai is Plaintiffs’ counsel’s sister.

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courts have the inherent power to disqualify expert witnesses

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to protect the integrity of the adversary process, protect

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privileges that otherwise may be breached, and promote public

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confidence in the legal system.”

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Corp., 330 F. Supp. 2d 1087, 1092 (N.D. Cal. 2004).

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Nsahlai’s obvious conflict of interest would alone be

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sufficient to warrant her disqualification.

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“Federal

Hewlett-Packard Co. v. EMC
Dr.

Furthermore, however, Dr. Nsahlai’s opinions are not
admissible under Rule 702.

Although designated as an expert

on Montreal Convention accidents, airline emergency
procedures, and “medical facts” involving Decedent, Dr.
Nsahlai testified that she has no experience in the aviation
industry as anything other than a passenger, she has no
training or expertise in on-board medical procedures, and her
only knowledge of the Montreal Convention is “hearing about
it.”

Nor is there any indication that any other experience

qualifies her to render expert opinions in this matter, or
that her opinions are grounded in any reliable methodology.
Rather, her opinion appears to have been based largely on the
inadmissible opinions of Dr. Wanji, and no other medical
records, Indeed, Dr. Nsahlai acknowledged that she did not
take the French certification of death by natural causes into
account.

Furthermore, like Dr. Wanji, she does not appear to

have any expertise in asphyxiation or autopsies, but rather is
a doctor of obstetrics and gynecology in Cameroon.

In light

of these facts, Plaintiffs have failed to demonstrate that her

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opinions or testimony are admissible under Rule 702, and

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Plaintiffs may not rely on them here.

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B.

Air France’s Actions

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Apart from the “accidental asphyxiation” theory,

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Plaintiffs posit that Air France’s various alleged failures
with respect to the medical care provided to Decedent onboard
the aircraft constitute an “accident.”

Actions by crew

members can, in some cases, qualify as the type of “unexpected
or unusual event” necessary to the occurrence of an “accident”
under the Montreal Convention.

In Prescod v. AMR, Inc., 383

F.3d 861, 868 (9th Cir. 2004), for example, a passenger
notified the air carrier that she was traveling with a bag
containing medication and a breathing-assistance device, which
needed to remain with her at all times.
864.

Prescod, 383 F.3d at

Although the airline had promised that the bag could

stay with the passenger, she was forced to relinquish the bag
before boarding the second leg of her flight.

Id.

The

carrier then lost the bag, and the passenger died of
respiratory distress some days later.

Id. at 865. The Ninth

Circuit found that, although baggage delays are not unusual,
“removing the bag from Neischer's possession was ‘unusual or
unexpected.’ Airlines do not usually take steps that could
endanger a passenger’s life after having been warned of the
person’s special, reasonable needs and agreeing to accommodate
them.”

Id. at 868.

Inaction, too, may constitute an unusual event sufficient
to qualify as an “accident.”

In Olympic Airways v. Husain,
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540 U.S. 644, 647 (2004), for example, an asthmatic passenger

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informed an air carrier that he could not sit near smoking

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passengers, and supported his claim with a letter from a

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physician.

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seated the passenger near a smoking section and thrice refused

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to re-seat him.

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passenger to have a severe asthma attack, and die.

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648.

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was not unusual, and the passenger’s reaction was internal,

Husain, 540 U.S. at 647.

Id.

The airline nevertheless

Heavy cigarette smoke caused the
Id. at

The Supreme Court held that, although the smoke itself

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the crew’s failure to act qualified as an unusual event

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external to the passenger, sufficient to qualify as an

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“accident.”

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Id. at 654-55.

Here, Plaintiffs point to several supposed instances of
the crew’s unusual, wrongful responses upon discovering
Decedent unconscious, including “failure to follow in-flight
medical procedures,” failure to seek the assistance of a
ground-based doctor, improper administration of saline, and
failure to properly use the defibrillator. Plaintiffs point to
no admissible evidence, however, to support these theories.
As discussed above, the opinions of Drs. Wanhji and Nsahlai
are not admissible.

The only other evidence cited by

Plaintiffs is the opinion of Helen Zienkievicz, a designated
expert in “the applicable standard of care, negligence, with
regards to Air Franc’s handling of the medical emergency of
[Decedent], accident under the Montreal Convention.”4

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Plaintiffs’ do not dispute that they did not take the
deposition of any percipient witness.
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(Passeri Decl., Ex C ¶ 1.)

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describes her as “an expert in the field of aviation industry

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standards.”

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testified that she is only “somewhat familiar with [the

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Montreal Convention],” and is “not a legal expert.”

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Decl., Ex. E at 37.)

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report opines that Decedent died from “accidental asphyxia,”

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and that various Air France crew members’ actions or inactions

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contributed to Decedent’s death, she testified that she was

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not rendering a “medical opinion,” but rather an opinion on

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“cabin safety and CPR and Hemlich.”

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68.)

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not qualified to render any opinion as to whether an

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“accident” occurred for purposes of the Montreal Convention,

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or as to the cause of Decedent’s death and the factors that

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contributed to it.

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(Id., Ex. D.).

Zienkievicz’s expert report also

Nevertheless, Zienkievicz

(Passeri

Furthermore, although Zienkievicz’s

(Passeri Decl., Ex. E at

Zienkievicz appears, thus, to have conceded that she is

Zienkievicz’s principles and methodology, or lack
thereof, are also cause for concern.
595.

Daubert, 509 U.S. at

Zienkievicz’s conclusions are admittedly founded upon

the inadmissible Wanji opinions, discussed above.
Decl., Ex. E at 68.)

(Passeri

Although Zienkievicz also testified that

her opinions were partly based upon the flight attendants’
reports, those reports are in French.

Zienkievicz testified,

however, that she does not read French, and used Google
Translate to interpret some of the French-language documents.5
(Id. at 21, 39.)

Plaintiffs do not dispute Air France’s

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representations that Plaintiffs, despite Air France’s request,

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never produced any translated documents upon which Zienkievicz

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relied, and Plaintiffs have not shown, or attempted to show,

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that any Google Translate translations were accurate.

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Nor was Zienkievicz aware of critical details of this
case, including documentation indicating that French
authorities determined that Decedent died of natural causes.
(Id. at 41-42.)

Further, although Zienkievicz opined that a

flight attendant “practiced maleficence” by injecting Decedent
with saline, she provides no basis for her assumption that the
treating flight attendant, a nurse, was not authorized or
trained to administer saline.

Zienkievicz also later

testified that she could not say whether administering saline
would cause any harm.6

(Id., Ex. D at 6;) Ex. E at 90.)

Under these facts, the preponderance of the evidence does not
support the conclusion that the requirements of Rule 702 have
been met.

Zienkievicz’s opinions are not admissible.

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IV.

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Conclusion
Plaintiffs bear the burden of proving the elements of their

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case.

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“accident,” as defined under the Montreal Convention, led to

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Decedent’s death.

They have cited no admissible evidence to establish that an

Plaintiffs have therefore failed to show that

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Somewhat ironically, Zienkievicz testified that an onboard
nurse may not have been qualified to administer saline because “if
somebody . . . works in a neonatal clinic or a neonatal ICU, that
doesn’t necessarily mean that they’re going to know what to do with
an adult in terms of medicines, medications, and treatment.”
(Passeri Decl., Ex. E at 79.) As discussed above, Dr. Wanji
appears to practice neonatal medicine and Dr. Nsahlai is a doctor
of obstetrics and gynecology.
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there is a genuine issue for trial, let alone that summary judgment

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in their favor is warranted.

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above, Defendant’s Motion for Summary Judgement is GRANTED.

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Plaintiff’s motion is DENIED.

Accordingly, for the reasons stated

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IT IS SO ORDERED.

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Dated:

August 10, 2021

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DEAN D. PREGERSON

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United States District Judge

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23
24
25
26
27
28
15