MUMTAZ v. ETTHAD AIRWAYS AND AIRLINES

Filing 45

OPINION. Signed by Judge Jose L. Linares on 12/30/14. (jd, )

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NOT FOR PUBLICATION UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY AHMAD MUMTAZ, Civil Action No. 12-cv-2051 Plaintiff, v. OPINION ETIHAD AIRWAYS AND AIRLINES, Defendant. JOSE L. LTNARES, U.S.D.J. This matter comes before the Court upon moti on by defendant, Etihad Airways and 1 Airlines (hereinafter “Etihad” or “Defendant”) for summary judgment (the “Motion” or “Motion for Summary Judgment”). (ECF No. 35). Purs uant to Rule 78 of the Federal Rules of Civil Procedure, no oral argument was heard. Upo n consideration of the Parties’ submissions, and for the reasons stated below, Defendant’s Mot ion for Summary Judgment, (ECF No. 35), is GRANTED. I. BACKGROUND A. Undisputed Facts This action arises from an alleged injury to the Plaintiff, Ahmad Mumtaz (hereinafter “Plaintiff’). Plaintiff was a passenger aboard Defendant, Etihad Airways’ flight EY1O1 from Abu Dhabi to New York on November 17, 2009. (Statement of Undisputed Facts (“SOUF”), ECF No. l Incorrectly sued as “Etihad Airways and Airli nes,” the Defendant is Etihad Airways P.J.S.C. 1 35-15, ¶ 1). This flight was apparently part of Plaintiffs round-tri p transportation of New York to Delhi, India, through Abu Dhabi. (Id. ¶ 2). Upon arrival, Plaintiff exited the aircraft under his own power without any assistance from Etihad staff . (Id. ¶ 19). From there, Plaintiff made a report to a police officer from Port Authority ofNew York and New Jersey which did not reference that Plaintiff sustained any injuries on board an Etih ad aircraft but rather that he was “dizzy.” (Id. ¶J 20-21). Nor did this report indicate that Plaintiff had an open wound on his head or was wearing a blood-stained shirt. (Id. ¶ 22). While the facts of how the injury occurred are disputed by the Plaintiff, what is undisputed, is that on November 17, 2009 Plaintiff was treated at Jersey City Medical Center. (Id. ¶ 3). The Jersey City Med ical Center medical records indicate that the Plaintiff “Denies [loss of consciousness] but has a 3cm 2 lipoma just off of vertex that looks like it has been there for years, there is no hair over this area. PT states this just happened although it does not look acute and is non-tender.” (Id. 25). Seve ral days after the alleged incident, Plaintiff ¶ had this cyst removed from his head. (Id. 26). By way of letter dated November 17, 2009, ¶ Plaintiff submitted a claim to Defendant Etihad for the alleged loss of his baggage in the amount of $500,000.00 without any mention of any injury susta ined on the flight. (Id. ¶ 27). B. Disputed Facts The events and occurrences leading to Plaintiffs alleged injury are disputed by the Parties and even contradicted by various recounts by the Plaintiff hims elf. The Court details all evidence by way of a timeline for the purposes of this Mot ion. November 17, 2009 was the date of the alleged injury to the Plaintiff. As a preliminary matter, there is no evidence of Plaintiff being 2 This is generally a benign tumor composed of adipose tissue (body fat). It is the most common benign form of soft tissue tumor Bancroft LW, Kransdorf MJ, Peterso n JJ, O’Connor MI (October 2006). “Benign fatty tumors: classification, clinical course, imaging appearance, and treatment”. Skeletal Radio!. 35 (10): 719—33. 2 injured on the flight outside of Plaintiff’s own testimony. The time at which he was allegedly injured on the flight, and where the injury occurred, remains contrad icted by the Plaintiff himself. Upon arrival, Plaintiff apparently became dizzy and sought assista nce from airport security who then contacted the Police of the Port Authority of New York and New Jersey. (See Transcript ECF No. 35-3 at 78-83). According to the “Aided” Report prepared by the attending officer, the listed place of occurrence was “Terminal 4” and the description of the inciden t was that the “subject was feeling dizzy and cold,” but Plaintiff disputes this and states he was bleeding and told the officer he was injured on the plane. (ECF No. 3 5-6). The Aided Report also indicated that an ambulance had been called (which Plaintiff did not utilize). (Id.). Approximate ly eight hours later, Plaintiff undisputedly went to Jersey City Medical Center (hereinafter “JCMC ”) for treatment. (See ED Physician Doc., ECF No. 35-4). The “Triage Notes” of JCMC ’s report explain Plaintiff has “hit his head inside airplane bath room comi[njg back from India,” which Plaintiff also disputes. (Id. at 1 )3 The report also indicates the site of injury was not bleeding but rather “lipoma. .does not . look acute and is non-tender,” while Plaintiff states he went to the hospital because his head was cracked open. (Id.). Plaintiff has alleged different accounts of when the incident took place. Plaintiff filed the Complaint in this action on or about November 14, 201 1 allegin g that Defendant negligently and carelessly stored baggage which became loose and struck Plaintiff on his head when he was attempting to exit the plane. (Compl., ECF No. 1, ¶J5-6). Howev er, on September 12, 2012 and in response to Defendant’s Interrogatory No. 1, Plaintiff states that “during the approach for landing the overhead bin opened and a bag fell on him.” (ECF No. 35-5 at 1). By Plaintiff’s Capitalization omitted. 3 deposition on January 24, 2014, Plaintiff testified that about halfwa y through the flight, the overhead bin opened and a bag fell upon him. (ECF No. 35-3 at 64). Therefore, it is unclear when the alleged injury actually occurred. C. Defendant’s Current Motion Defendant seeks summary judgment primarily because “Plaintiff has provided four conflicting versions of how or when the alleged incident occurr ed.” (Def. Br., ECF No. 35 at 2). Defendant points the Court to evidence which refutes Plaintiffs own self-serving testimony and asks the Court to conclude that, as a matter of law, no genuine dispute of material fact exists in this case. Plaintiff opposed Defendant’s Motion by way of a two (2) page letter. (ECF No. 43)•4 Plaintiffs only opposition points the court generally to exhibits attache d to Defendant’s moving brief (transcripts from a deposition of Plaintiff and arbitration hearing) and claims these alone establish “all elements required for potential liability against the defendant.” (ECF No. 43 at 12). Plaintiff also states that “under long standing law govern ing summary judgment, when there are genuine issues ofmaterial fact relative to the happening ofthe accident ... [s]ummary judgment would not be warranted....” (Id. at 2). Notably, Plaintiff does not point the Court to any specific genuine issues of fact, nor any relevant precedent. 6 Plaintiffs Opposition is unreadable on the docket and has been printed and re-formatted for review by the Court. Court notes that Plaintiff, as the non-moving party, may not defeat summary judgment by simply resting on the argument that the record contains fact sufficient to suppor t his claims. See Big Apple BMW Inc. v. BMW of North 4merica, Inc., 974 F.2d 1358, 1362 (3dCir.1992), cert. denied , 507 U.S.912, 113 S.Ct. 1262,122 L.Ed.2d 659 (1993); O’Donnell i’. US., 891 F.2d 1079, 1082 (3d Cir.1989). Rather , the non-moving party must go beyond the pleadings and, by affidavits or other evidence, designate specific facts showing that there is a genuine issue for trial. C’elotex, 477 U.S. at 324, 106 S.Ct. 2548; Fed.R.Civ.P. 56(e). 6 The Court is mindful that when a party asks the Court to consider evidence which it fails to provide in response to the summary judgment motion in question, the District Court has no obligation to sift through the record in deciding the motion. Boomer v. Lewis, 541 F. App’x 186, 191 (3d Cir. 2013). 4 II. LEGAL STANDARD Summary judgment is appropriate when, drawing all reaso nable inferences in the non movant’s favor, there exists no “genuine dispute as to any material fact” and the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); King Pharm., Inc. v. Eon Labs, Inc., 616 F.3d 1267, 1273 (Fed. Cir. 2010). The moving party is entitled to judgment as a matter of law when the non-moving party fails to make “a sufficient showing on an essential element of her case with respect to which she has the burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). However, if a reasonable juror could return a verdict for the non-moving party rega rding material disputed factual issues, summary judgment is not appropriate. See Anderson , 477 U.S. at 242-243 (“At the summary judgment stage, the trial judge’s function is not hims elf to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.”). With this framework in mind, the Court turns now to Defendan t’s Motion. LII. DISCUSSION The parties do not contest that this case is governed by the Warsaw Convention, as modified by the Montreal interim Agreement, wher e Article 17 establishes the liability of international air carriers for harm to passengers. Air France v. Saks, 470 U.S. 392, 397 (1985). It states the following: The carrier shall be liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injur y suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the cour se of any of the operations of embarking or disembarking. 5 Id. The significant features of this provision for our purposes are the terms “bodily injury” and “accident.” In considering these terms, the Supreme Court has explain ed that in order to determine whether an accident occurred, the court must consider “all of the circumstances that surrounded the passenger!s injuries.” Id. at 405. Additionally, the Suprem e Court noted that because any injury is the product of a chain of causes, it required only that the passenger be able to prove that some link in the chain was an unusual or unexpected event externa l to the passenger. Id. As the Court will discuss below, in the present case this standard is not met as it is unclear if Plaintiff suffered any “bodily injury” at all. Finally, the Court admits on the outset of this discussion that whethe r Plaintiff has sustained injuries due to an “accident” is normally a factual dispute. The Court’s analysis will not contradict this notion. However, at some point in analyzing the totality of evidence in a case, the Court must determine if this factual dispute is actually “genuine” as required by the summary judgment standard. Perhaps a parallel consideration the Court should note, is the distinction between concluding that a fact-tinder may, by chance, interpret someth ing from the evidence, as compared to a reasonable fact-finder’s conclusions. As articulated below, because Plaintiff has failed to set forth specific facts showing there is a genuine dispute for trial as to whether there was an “accident causing an injury, it finds also that a reasonable fact-finder could not return a verdict for the Plaintiff in this case as to the issue of whether or not an injury was caused. A. The Factual Dispute is not Genuine The factual dispute regarding the Plaintiff’s alleged injury in this case arises from an overwhelming myriad of evidence favoring the Defendant, which is only disputed by Plaintiffs 6 own account of the incident without any other credible evid entiary corroboration. That is, the 7 on/v evidence offered by Plaintiff is his own uncorroborated testimony that there was an incident on the plane which caused an injury. Not only can Plaintiff not support his testimony with specific facts or documentary evidence, his testimony is contradicted by strong evidence showing Plaintiff sustained no injury on board the flight in question. While the Court will not make credibility determinations on a motion for summary judgment, the Court must, to some degree, find some cons istencies in Plaintiff’s allegations from which a reasonable jury could find the injuries he claims as his basis for this lawsuit. If Plaintiff cannot reasonably prove he sustained an injury, summary judgment must be awarded to the Defendant. While the location and time of the alleged injury is not deter minable, perhaps the most consistent part of Plaintiff’s testimony is that he was bleed ing profusely from his head as a result of his injury. This appears in fact to be the only unswervin 8 g injury claimed by Plaintiff due to a bag falling from an overhead bin. Indeed, Plaintiff state s in his interrogatory answers that he “sustained trauma to the head along with laceration and cuts and bleeding of the scalp.” (ECF No. 35-5, ¶5). Further, Plaintiff’s sworn testimony on two occa sions explains there was “too much blood” and there was “a lot of blood” which stained his shirt . (Arbitration Transcript (hereinafter The Court notes just a few discrepancies for the sake of brevity: 1) Plaintiff claims he told the doctor at Jersey City Medical Center that his head was hurt from a bag falling , (Tr. 92:16-23), however the medical report indicates he hit his head in the lavatory; 2) Plaintiff claims that after they examined him at Jersey City Medical Center they gave him stitches, which again, there is no report of (Tr. 97:1925); 3) Plaintiff explains there was turbulence which caused the bag to fall although no turbulence was reported by the flight; (Tr. 54:1-21); 4) Plaintiff says that two men and three women made a report of the incident, (Tr. 6 1:12-2 2), in fact no actual report was made; 5) Plaintiff explain s that because of the accident his hair is gone and doesn’t grow which sharply contradicts the hospital report that the area close to the injury did not have any hair upon arrival ; (Tr. 98:12-15); and 6) Plaintiff states he received bandag es for his bleeding injury while onboard, which there is no medical report of. (Arb. Tr. 11:18-20). 8 The Court has reviewed Plaintiff’s deposition and while many of the allegations asserted regarding the incident by Plaintiff are contradictory and all out confusing, Plainti ff indisputably alleges that there was a lot of blood as result a of this alleged incident on the plane. 7 “Arb. Tr.”), ECF No. 35-7, 10:7). (Tr. 67:5-68:12). The Cou rt however, cannot in good faith give this issue of fact to a jury when the following evidence prov ides the contrary conclusion. First, and perhaps most importantly, Plaintiff not only waited about eight (8) hours to go to the hospital, but the medical report identifies no spec ific injury that could be determined to have occurred that day, and states that the injury occurred when Plaintiff “hit his head inside airplane bathroom” which would not qualify as an “accident” to ensue liability. (ECF No. 35-4 at 1). 9 Indeed, the report states Plaintiff “denies [loss of consciou sness] but has a 3cm lipoma just off the vertex that looks like it has been there for years, there is no hair over this area. [Plaintiff] states this just happened although it does not look acute and is non-tender.” (Id.). Not only does this report state a different cause of the “injury” it seems to indic ate there was no identifiable injury at all outside of a pre-existing cyst. The Court notes that there is no mention of any blood or cut to verify Plaintiff’s account of this incident. The next set of facts that point towards a lack of proo f of Plaintiff being injured while aboard the plane in question, stems from the lack of repo rts made by the airplane staff as well as their sworn testimony, juxtaposed to Plaintiff’s contentio ns. Michael Callen Pass (hereinafter “Mr. Pass”) has been employed with Defendant as part of the cabin crew since 2009 and was a member of the crew on Plaintiff’s flight. (Deci., ECF No. 35-1 0 at ¶J2, 5). Mr. Pass states that while he understands Plaintiff’s claims, “Etihad has very strin gent reporting requirements for any onboard medical incident or event where an In-F light Medical Report must be completed “In cases where there is contradictory evidence, it is for the trier of fact to decide whether an ‘accident’ as here defined caused the passenger’s injury,” with the caveat that there is no accident “when the injury indisputably results from the passenger’s own internal reaction to the usual, normal, and expected operation of the aircraft.” Air France , 470 U.S. at 405. See also Manion v. Am. Airlines, Inc., 17 F.Supp.2d 1, 5 (D.D.C.1997) (“Summary judgm ent can only be granted if as a matter of law, the Court conclu des that plaintiffs injuries were not caused by an accide nt pursuant to the Warsaw Convention.”). 8 each and every time a passenger is injured or becomes ill during a flight,” and no such InFlight Medical Report documenting his injuries and any medica l care was prepared. (Id. ¶J67, 9). Similarly, Mr. Pass explains that there was no “Cabin Manager Report” prepared which would “definitely” mention any bleeding injury suffered by a passenger, nor was the Captain informed of any such incident to complete an “Air Safety Report .” (Id. ¶Jl2, 13). Notably, there was however a reported Air Safety Report for a different passen ger on that flight who was suffering from stomach cramps. (Id. ¶13). Mr. Pass, in sum, explains that based upon the fact that there is no report of any kind relating to any incident involv ing the Plaintiff (i.e. no InFlight Medical Report, no entry in the Cabin Manager Report and no Air Safety Report) and the fact that he “would have recalled if such incident happened in a flight operated by [him]” he does not believe Plaintiff was injured as he alleges in the lawsui t. (Id. ¶15). Lastly, the Aided Report taken by a Port Authority officer explain s the Place of Occurrence of the incident was Terminal 4 and it only reported that Plainti ff was “dizzy” and “felt cold.” (ECF No. 3 5-6). Plaintiff alleges the injury he suffered was a lacerat ion to his head and on the flight there was “a lot ofblood” which stained his shirt. (Tr. 67:5-6 8:12). This Report makes no mention of Plaintiff bleeding or having any sort of injury on the aircraf t which is of particular note given the Aided Report was completed right after Plaintiff’s arrival and presumably very close to the time of the incident. Thus, the only evidence of record pertain ing to Plaintiffs alleged injuries is Plaintiffs self-serving testimony stating that he suffered a severe bleeding head injury, which was not corroborated or even mentioned in any report or eviden ce of record. This is not enough to 9 overcome summary judgment on the facts before the Cou rt since no reasonable trier of fact could find, based on the evidence of record, in favor of the Plain tiff. B. A Reasonable Fact-Finder Could Not Find Ther e was an Accident that Caused the 0 Injury’ To defeat summary judgment nonmoving parties “mu st do more than simply show that there is some metaphysical doubt as to the material facts .” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed .2d 538 (1986). That is, the summary judgment standard does not denote what a fact-finder may find upon delusion, but rather what a reasonable fact-finder could conclude from the evidence presented. Upon review of the evidence, it is apparent that a reasonable juror could not conclude that Plaintiffis injury (if any) arose from an accident on the airplane in question. This Court shall not be permit this Plaintiff or any, to rely exclusively on unsubstantiated speculation, but rathe r he must offer some evidence showing that his version of the events is reasonable. Such would in essence, eliminate the summary judgment standard and allow any Plaintiff to create a genuine dispute of material fact by reasoning the evidentiary equivalent of “Because I said so.” To grant summary judgment, the Court would need to conclude that Plaintiff has failed to establish his injury was caused by an “accident” on the aircraft, but it would be equally sufficient if Plaintiff has failed to establish an injury. The Cou rt gives the nonmoving party the benefit of ° Plaintiffs opposition to summary judgment referre d to testimony that “clearly established that he was injured due to an accident while on the airline” with no citation to the record. As the Third Circuit has observed, “[jjudg es are not like pigs, hunting for truffles buried in briefs.” United States v. Starnes, 583 F.3d 196, 216 (3d Cir.2009) (quoting United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (internal quotation marks omitted)). If factual support for Plaintiffs claim existed in the record, it was incumb ent upon him to direct the Court’s attention to those facts. DeShields v. Int’l Resort Properties Ltd., 463 F. App’x 117, 119-20 (3d Cir. 2012). Plaintiff did no such thing. 10 all reasonable inferences on this Motion. Bray v. Marriott Hotels, 110 F.3d 986,989 (3d Cir.1997). Unfortunately, many, if not all of the inferences Plain tiff asks this Court to draw from his everchanging testimony, are unreasonable. To conclude that Plaintiff was injured from an accident onboard the aircraft would certainly require one to unde rtake a suspension of disbelief. To allow unreasonable inferences to be drawn from Plaintiff, this Court would be drastically limiting the possibility that summary judgment could ever be gran ted because virtually any contrary testimony by a plaintiff would preclude a grant of summary judg ment to the defendants. Pamintuan v. Nanticoke Mem’lHosp., 192 F.3d 378, 387 (3d Cir.1 999). This Court is guided by the Second Circuit case of Jeffr eys v. City of 7”/ew York. 426 R3d 549 (2 Cir, 2005), In Jejfreys, the Court granted summary judgment in favor of the Defendants on the basis that the Plaintiffs testimony, largely unsu bstantiated by any other direct evidence, was “so replete with inconsistencies and improbabilities” that no reasonable juror would “undertake the suspension of disbelief’ necessary to credit the Plain tiffs allegations. Id. at 551. Indeed, the Plaintiff in Je/freys alleged that while police officers arrested him, they beat him and hit him over the head with a flashlight. Id. at 552. However, cont rary to Plaintiffs claims, upon examination, a doctor ibund no evidence of any head trauma nor evidence of external injury consistent with Plaintiffs recount of his injuries. Id. at 553. The Court explained that: While it is undoubtedly the duty of district cour ts not to weigh the credibility of the parties at the summary judgment stage, in the rare circumstance where the plaintiff relies almost exclu sively on his own testimony, much of which is contradictory and inco mplete, it will be impossible for a district court to determine whether the jury could reasonably find for the plaintiff Id. at 554 (internal citation omitted). Such a hold ing is applicable to the facts before this Court. 11 Plaintiff’s own account of the alleged incident is uncl ear and inconsistent. Even placing aside Plaintiff’s various recounts of the events leading to his injury, there is no evidence that supports Plaintiffs allegations that he was cut on the head from a falling bag. What is supported, is that Plaintiff boarded a flight, disembarked the same flight, began feeling dizzy, and was diagnosed with a cyst that he had on his head well befo re the flight)’ While the Court of course will not make these findings of fact at the summary judgment stage, suffice it to say that the allegations of the Plaintiff are patently contradicted by the plethora of evidence before the Court. The Court is particularly cognizant that “[tjhe mere existence of a scintilla of evidence in support of the plaintiffs position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252, 106 S.Ct. 2505 (emphasis added). Apart from Plaintiff’s testimony, the Court has yet to be pointed to a scintilla of evidence favoring the Plaintiff. IV. CONCLUSION For the reasons set forth above, Defendant’s Motion for Summary Judgment, (ECF No. 35), is GRANTED. An appropriate Order accompa nies this Opinion. i Date: December’j, 2014 States District Judge l The Court notes that not once in Plaintiff’s deposi tion does he express that any alleged injury occurred as a result of exacerbating a pre-existing cyst or loss of consci ousness. In fact, Plaintiff specifically refutes these possibilities. Rather Plaintiff explains that what occurred was severe and profuse bleeding. This is the only basis for his claim. 12

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