Narkewicz-Laine v. Aer Lingus Group Public Limited et al.

Filing 51

MEMORANDUM Opinion and Order; Defendants' motion for summary judgment 39 is granted in part and denied in part for the reasons stated. Telephonic status hearing set for 8/27/2015 at 1:30 PM. By 8/25/2015, counsel shall provide direct-dial telephone numbers to the Court's operations specialist who will initiate the call. (See attachment for full detail.) Signed by the Honorable Iain D. Johnston on 8/21/2015: (yxp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
Christian Narkiewicz-Laine,
Plaintiff,
v.
Aer Lingus Limited, et al.,
Defendants.

)
)
)
)
) No. 14 CV 50098
) Magistrate Judge Iain D. Johnston
)
)
)

MEMORANDUM OPINION AND ORDER
This case involves a claim under the Convention for the Unification of
Certain Rules for International Carriage by Air, in which Christian NarkiewiczLaine (“Plaintiff”) alleges he was injured when a flight attendant struck him in the
head with a bag as she walked down the aisle of an Aer Lingus Limited
(“Defendant”) airplane. Currently, pending before the Court is Defendant’s
summary judgment motion (“Motion”). Dkt. # 39. The Motion is fully briefed. Dkt.
## 39, 40, 46, 47. Additionally, on August 18, 2015, the Court held a telephonic
hearing regarding the Motion. For the reasons stated below, the Motion is granted,
in part, and denied, in part. This matter is set for a telephonic status hearing on
August 27, 2015, at 1:30 p.m.
FACTS 1
Plaintiff is a resident of Illinois and citizen of the United States. Defendant
is a foreign company, with its principal place of business in Dublin, Ireland.
The facts are developed from the parties’ Local Rule 56.1 statements of fact. With only
minor exceptions, the parties have complied with this rule. On a few occasions, the Court
was left to scour the record to locate certain facts. In its discretion, the Court has included
some of these facts into the Memorandum Opinion and Order. The overall facts are
generally not disputed, with two exceptions. First, Defendant disputes that its flight
attendant struck Plaintiff’s head. Second, Defendant disputes that Plaintiff suffered a
seizure. The first disputed fact is not material in that Defendant has conceded, for
purposes of summary judgment only, that being struck on the head constitutes an accident.
Defendants argue, however, that regardless of whether an accident actually occurred,
Plaintiff cannot show that such an accident caused him to sustain a bodily injury. The
second disputed fact is key to this Memorandum Opinion and Order, and is more fully
discussed.
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Jurisdiction is provided under 28 U.S.C. § 1331 because Plaintiff’s claims arise
under the Unification of Certain Rules for International Carriage by Air, Art. 33,
May 28, 1999, S. Treaty Doc. No. 106-45 (2000), available at 1999 WL 33292734
(2000) (hereinafter “Montreal Convention”), as well as under diversity jurisdiction,
28 U.S.C. § 1332(a).
On May 12, 2012, Plaintiff was a passenger on Aer Lingus flight EI629,
traveling from Helsinki, Finland to Dublin, Ireland. Plaintiff was travelling with
Kieran Conlon, who was seated next to Plaintiff in the same row. Another
passenger was seated across the aisle from Plaintiff.
During the flight, Plaintiff claims that while he was sleeping, he was struck
in the head by a piece of luggage or handbag that a flight attendant was carrying
down the aisle. After being struck, Plaintiff looked back and saw a flight attendant
pushing past passengers; she was carrying a bag. According to Conlon, passengers
were in the aisle, lined up to use the restroom. Although Conlon’s eyes were closed,
he heard a flight attendant say “excuse me, excuse me”. Conlon then heard a “thud”
and Plaintiff swear. Plaintiff then walked back to the galley and confronted the
flight attendants.
Plaintiff claims that after he returned to his seat, he saw a blue light and
smelled something metallic. Plaintiff also felt “fuzzy,” “semiconscious” and
“terrified”. Plaintiff also believed that the flight may have been hijacked. Plaintiff
did not request medical attention during the flight.
Both Plaintiff and Conlon have made sworn statements regarding the
possible consequence of Plaintiff allegedly being struck by the bag. According to
Plaintiff, he believed that he suffered a seizure and that he has a history of seizures
from a previous head injury. Conlon claims that Plaintiff’s “appearance was similar
to other people [he] observed suffering from seizures in the past.” Indeed, in 2002,
Plaintiff was involved in a traffic collision, resulting in a head injury.
Consequently, he was prescribed and was taking anti-seizure medication on May
12, 2012. The 2002 head injury caused dizziness, vertigo, headaches and memory
loss. But Plaintiff had not had a seizure since 2007.
After the flight arrived and Plaintiff and Conlon spoke with the flight crew,
an ambulance was called for Plaintiff. The ambulance took Plaintiff to Beaumont
Hospital in Dublin, Ireland for medical treatment. Plaintiff was treated and
released. He flew home two days later without incident. Upon returning home,
Plaintiff was treated by his primary care physician, at which time he complained of
dizziness, vertigo and headaches. According to the medical records, Plaintiff
complained of being “hit in head by piece of luggage – had a seizure.”

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Plaintiff has identified no expert witnesses under Federal Rule of Civil
Procedure 26(a)(2). To be clear, Plaintiff has not identified retained expert
witnesses who are required to write and provide reports under Rule 26(a)(2)(B). He
has also failed to identify expert witnesses who are not required to write and
provide reports, but for whom Plaintiff would be required to submit a summary
report, under Rule 26(a)(2)(c).
In contrast, Defendant has identified a retained expert witness, who has
provided a report under Rule 26(a)(2)(B). Defendant’s expert witness is a
neurologist named Dr. Jeffrey Loeb. Among other things, Dr. Loeb opined that, to a
reasonable degree of medical certainty, Plaintiff did not suffer a seizure when he
was allegedly hit on the head with the bag, nor did the blow aggravate a preexisting seizure condition. Instead, Dr. Loeb opined that Plaintiff suffered a panic
attack, unrelated to any bodily injury.
CONTENTIONS
In relevant part, Plaintiff’s Complaint alleges the following: “While on the
flight Plaintiff was injured when he was struck in the head with a heavy object
believed to be a piece of luggage being handled by an Aer Lingus flight attendant[].
Defendants were negligent in the following particulars: a) Striking Plaintiff in the
head with handled luggage or bags; . . . c) In failing to render aid to Plaintiff after
his injury and subsequent seizure.” Dkt. #1, p. 2. The Complaint then goes on to
allege the following: “As a proximate result [sic] being struck on the head as a result
of Defendants’ negligence Plaintiff was injured, suffered a seizure and a
reoccurrence of seizure and post-seizure symptoms, including vertigo, nausea, loss
of concentration, incurred medical expense, suffered loss of driving privilege, and an
aggravation of pre-existing seizure disorder.” Id. (Italics added.)
Defendant’s Motion focuses on Plaintiff’s allegations that the “accident”
caused a seizure, a reoccurrence of seizure symptoms, and aggravated a pre-existing
seizure disorder. Defendant’s argument is logical and straight-forward. First,
Plaintiff failed to identify any expert witnesses under Rule 26(a)(2), both retained
expert witnesses and non-retained expert witnesses. Second, without an expert
witness, Plaintiff cannot present evidence that being struck on the head with a bag
can cause a seizure or an aggravation or reoccurrence of a seizure disorder. Third,
because Plaintiff cannot establish a causal link between the hit to the head and
Plaintiff’s alleged seizure and seizure issues, Defendant is entitled to summary
judgment.
Defendant’s syllogism is correct – as far as it goes. The Motion’s focus is over
the extent of a “bodily injury.” But Plaintiff’s failure to establish that the accident
caused a seizure or seizure related issues does not mean that Plaintiff has failed to
present a triable issue of material fact. Despite the lack of an expert to support
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causation, on this summary judgment record, as a result of the physical impact of
being hit on the head with a bag (i.e., an accident), while on board Defendant’s
aircraft, he suffered a bodily injury (namely, headaches, nausea and dizziness). In
other words, Defendant is not entitled to judgment as a matter of law. A legal claim
still survives, albeit a very small and not very strong claim. Under the facts that
the Court must accept as true for summary judgment purposes, an accident
occurred resulting in a bodily injury.
ANALYSIS
A. Summary Judgment Standard
Pursuant to Federal Rule of Civil Procedure 56, summary judgment shall be
granted if the movant shows that there is no genuine issue of material fact and the
movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Johnson v.
Saville, 575 F.3d 656, 659 (7th Cir. 2009). In making this determination, the nonmovant is entitled to reasonable inferences drawn by the court, not every
conceivable inference. Gleason v. Mesirow Financial, 118 F.3d 1134, 1139 (7th Cir.
1997). A dispute is “genuine” when the evidence is such that a reasonable jury
could return a verdict in favor of the non-movant. Anderson v. Liberty Lobby, 477
U.S. 242, 248 (1986). Accordingly, if a plaintiff has not put forward evidence to
support every element of his claim, summary judgment should be granted. Griffen
v. Potter, 356 F.3d 824, 828 (7th Cir. 2004); see Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). And a fact is “material” if it would affect the outcome under the
governing, substantive law at issue in the case. Anderson, 477 U.S. at 248.
B. Elements of Plaintiff’s Claim
This case involves the Montreal Convention, which became law, when the
treaty was approved. The Montreal Convention superseded the Warsaw
Convention. 2 The applicable article under the Montreal Convention, as it would
have been under the Warsaw Convention, is Article 17. Indeed, the explanatory
note states “[i]t is expected that this provision will be construed consistently with
the precedent developed under the Warsaw Convention and its related
instruments.” The relevant portion of Article 17 states the following: “The carrier is
liable for damages sustained in case of . . . bodily injury of a passenger upon
condition only that the accident which caused the . . . injury took place on board the
aircraft.” Montreal Convention, Art. 17(1). Accordingly, the elements of a plaintiff’s
claim for bodily injury are (1) an accident, (2) that took place on board the aircraft,
(3) which caused (4) an injury. Gupta v. Austrian Airlines, 211 F. Supp. 2d 1078,
1082 (N.D. Ill. 2002); see also Eastern Airlines, Inc. v. Floyd, 499 U.S. 530, 535-36
(1991) (identifying elements under Warsaw convention to be an accident in which
See Sompo Japan Ins., Inc. v. Nippon Cargo Airlines Co., Ltd., 522 F.3d 776, 780-81 (7th
Cir. 2008).
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the passenger suffered “mort,” or “blessure” and the accident took place on board
the aircraft). In analyzing Article 17 of the Warsaw Convention, the Supreme Court
was forced to interpret the French term “blessure.” Eastern Airlines, 499 U.S. at
536. 3 In doing so, the Court noted that there was agreement that the term
“blessure” meant “physical impact.” Id. at 536 n.4.
C. Although Plaintiff Will Not Be Able to Present Testimony Regarding
Seizures, He Has a Viable Claim Requiring a Trial
The Court will address the recognized elements of Plaintiff’s claim. First, for
purposes of summary judgment, Defendant has stipulated that being struck on the
head constitutes an “accident.”. Dkt. # 39, p. 5. Although Defendant does not
concede that an accident actually occurred, this does not affect this Court’s analysis
on the Motion. Second, there is no dispute that the alleged accident occurred on
board one of Defendant’s aircrafts. The other two elements of Plaintiff’s claim are
the focus of the Motion.
It is true that Plaintiff’s complaint alleges that the hit to his head caused a
seizure and aggravated a pre-existing seizure disorder. Dkt. #1, p. 2. It is also true
that Plaintiff has not identified any witness who can testify to causation. See Fed.
R. Civ. P. 37(c)(1) (“If a party fails to provide information or identify a witness as
required by Rule 26(a) or (e), the party is now allowed to use that information or
witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure
was substantially justified or harmless.”). Therefore, without an expert to testify,
Plaintiff is unable to show that the hit to the head caused a seizure and aggravated
a pre-existing seizure disorder. See Fed. R. Evid. 701 (providing that a lay witness
may not offer testimony “based on scientific, technical, or other specialized
knowledge”); Schmaltz v. Norfolk & Wy. Ry., 896 F. Supp. 180, 182 (N.D. Ill. 1995)
(“Expert testimony is generally required to establish a causal connection between
an accident and an injury “unless the connection is a kind that would be obvious to
laymen, such as a broken leg from being struck by an automobile.”) (internal
quotation marks and citation omitted).
But it is also true that Plaintiff’s Complaint alleged that the blow to his head
injured him and caused various physical manifestations of the injury, including,
vertigo, nausea, and loss of concentration, as well as medical bills. Dkt. #1, p. 2.
Plaintiff’s deposition provides the necessary evidence sufficient to survive summary
judgment to support the Complaint’s allegations. Dkt. # 39-4, p. 34 (“I just
remember I was in a lot of pain.”), p. 36 (“Q: Did you have a bump or bruise on your
head? A: Yes.”); p. 73 (ailments included “dizziness, vertigo, headaches, extreme
vertigo”). Expert testimony is not required for this evidence. See Hendrickson v.
Cooper, 589 F.3d 887, 892 (7th Cir. 2009) (allowing plaintiff to describe pain
resulting from attack where there was “no … complicated question of medical
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Despite the location of the Warsaw Convention, the document was drafted in French.

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causation.”). A plaintiff can testify as to the manifestations of an injury. See
Christmas v. City of Chicago, 691 F. Supp. 2d 811, 821 (N.D. Ill. 2010) (finding that
lay witnesses were “entitled to testify about their own perceptions, including the
physical and emotional effects of the defendants’ alleged conduct”). In this regard,
causation as to Plaintiff’s alleged dizziness, nausea, loss of concentration and
headaches is a question of fact for the jury to decide. See Hendrickson, 589 F.3d at
892 (“No expert testimony is required to assist jurors in determining the cause of
injuries that are within their common experiences or observations.”); Ledford v.
Sullivan, 105 F.3d 354, 359-60 (7th Cir. 1997) (finding that the jury could
determine whether the plaintiff had serious medical needs because the plaintiff’s
symptoms, including nausea and dizziness, were not beyond the grasp of lay jurors).
In summary, admissible evidence exists that Plaintiff suffered a physical impact to
his head that caused a bodily injury; albeit not an injury to the extent alleged in the
Complaint.
The fact that Plaintiff cannot establish now and will not be allowed to present
evidence at trial that the alleged hit to the head caused a seizure and aggravated a
pre-existing seizure disorder does not negate that he claims that following the hit to
the head he suffered a bodily injury that manifested itself in a variety of ways.
Plaintiff may not be able to convince a jury that (1) he was, in fact, hit on the
head by the flight attendant or (2) that even if he was, that he suffered the physical
manifestations of the alleged blow (particularly in light of Dr. Loeb’s opinion).
Moreover, Plaintiff may have a difficult time establishing damages, particularly
with Plaintiff’s damages capped by the Montreal Convention. But on summary
judgment, the Court is not allowed to weigh the evidence or determine if the claim
has sufficient possible monetary recovery to go to trial. See Sweeny v. City of West
Chicago, No. 08 C 2223, 2010 U.S. Dist. LEXIS 47928, at *22-23 (N.D. Ill. May 14,
2010) (finding a determination on damages premature where the court found triable
issues of fact as to liability). The fact that a modest possible recovery is even more
modest does not allow the Court to enter judgment as a matter of law.
During the August 18, 2015 hearing on the Motion, Defendant cited to Carey
v. United Airlines, 255 F.3d 1044 (9th Cir. 2001), which was not cited in the briefs.
Carey is distinguishable. In Carey, no physical impact occurred. The claims in
Carey were based entirely on mental and emotional distress. Here, for summary
judgment purposes, the physical impact to the head by the bag resulted in bodily
injury, such as being “in a lot of pain.” At the hearing, Defendant correctly noted
that there was no evidence of a laceration, but that fact goes to (a) the extent of the
bodily injury, if any, and (b) the credibility of Plaintiff’s claim that he was struck.

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CONCLUSION
Defendant’s Motion is granted to the following extent. At trial, Plaintiff
cannot assert a claim that being struck on the head by the bag caused him to suffer
a seizure, caused any reoccurrence of seizures or aggravated a pre-existing seizure
disorder. (Plaintiff’s assertion that the blow loosened his teeth has already been
abandoned by Plaintiff.) Plaintiff is barred from offering any opinion as to any
diagnoses of his injury, including, but not limited to, a seizure. Plaintiff’s claim
may proceed to trial, during which time he can testify as to the incident and the
physical manifestations of the alleged injury, such as dizziness and headaches,
caused by the physical impact to his head by the bag. Defendant will be allowed to
offer Dr. Loeb’s expert testimony, consistent with his expert disclosure.
In light of this ruling, both sides may want to consider whether a trial is the
best use of their resources. And Plaintiff should be aware that costs will likely be
imposed if judgment is entered in favor of Defendant. See 28 U.S.C. §1920.

Entered: August 21, 2015

By:__________________________
Iain D. Johnston
U.S. Magistrate Judge

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