SCHAEFER-CONDULMARI v. US AIRWAYS GROUP, INC.

Filing 99

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE MARY A. MCLAUGHLIN ON 7/17/12. 7/18/12 ENTERED AND COPIES E-MAILED (mbh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JUDITH SCHAEFER-CONDULMARI

:
:
:
:
:

v.
US AIRWAYS GROUP, LLC

CIVIL ACTION

NO. 09-1146

MEMORANDUM
McLaughlin, J.

July 17, 2012

The plaintiff brings this suit after suffering an
allergic reaction to a meal served aboard the defendant’s
airline.

As a result of the allergic reaction, the plaintiff

alleges physical and mental injuries, including post-traumatic
stress disorder (“PTSD”).

Currently before the Court are four

motions filed by the defendant.

The Court will deny the

defendant’s motion for summary judgment; grant in part and deny
in part the defendant’s Daubert motion; grant the defendant’s
motion to strike; and grant in part and deny in part the
defendant’s motion to compel.
I.

Summary Judgment Record
The plaintiff is allergic to gluten.

(Pl. Dep.) at 30-32.

Pl. Br., Ex. A

On September 9, 2008, the plaintiff was

traveling on the defendant’s airline from Rome, Italy to
Philadelphia, Pennsylvania.

Def. Stmt. of Undisputed Fact ¶ 2;

1

Pl. Resp. Stmt. ¶ 2.
while on board.

She was served a meal containing gluten

Def. Stmt. ¶ 6; Pl.’s Resp. Stmt. ¶ 6.

After taking a few bites of the meal, the plaintiff
suffered an allergic reaction, developed hives and experienced
difficulty breathing.

Pl. Br., Ex. D at 87.

Eventually the

plaintiff was brought to the back of the plane where a flight
attendant and a nurse on board the flight attended to her,
injuring her leg in the process.

Id. at 106-07.

The parties dispute whether the plaintiff ordered a
gluten-free meal for the September 9, 2008 flight.

The booking

record for the September 9, 2008 flight shows that a vegetarian
meal was ordered.

Def. Br., Ex. D.

vegetarian meal on board the flight.

The plaintiff was served a
Def. Br., Ex. E, 27-28.

The plaintiff argues that the booking record is
mistaken.

Since 1977, the plaintiff has “always” ordered a

gluten-free, wheat-free meal when she travels.

Id. at 30-32.

Although the plaintiff could not remember if she booked this
flight, the booking record for the September 9, 2008 flight shows
that the plaintiff booked the flight.
Pl. Supp. Br., Ex. A at 59.

Def. Br., Ex. A at 45-46;

Booking records from 2007 through

2009 show that the plaintiff usually ordered a gluten-free meal
when she ordered a meal from the defendant.
9.

Def. Supp. Br. at 8-

In addition, the plaintiff informed Linda Fischer, a flight

2

attendant on board the flight, that she needed a gluten-free
meal.1
II.

Def. Br., Ex. E at 26-28; Pl. Supp. Br., Ex. H at 118.

Motion for Summary Judgment2
The plaintiff’s claims are governed by the Convention

for the Unification of Certain Rules for International Carriage
by Air (“the Montreal Convention”).3

See Montreal Convention,

1

The record also contains a statement by Linda Fischer that
the plaintiff said she ordered a gluten-free meal. Def. Br., Ex.
E at 27. The Court has not heard an argument that would make
this statement admissible against the defendant for the truth of
what the plaintiff ordered. The Court therefore does not
consider that statement here.
2

A party is entitled to summary judgment if there “is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
The moving party bears the initial burden of demonstrating the
absence of any genuine issue of material fact, which may be
satisfied by demonstrating the party who bears the burden of
proof lacks evidence to support his case. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). A fact is “material” if it
might affect the outcome of the suit under the governing law and
“genuine” if a reasonable jury could find for the nonmoving party
based on the evidence presented on that issue. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In making its
determination, the court must consider the evidence in a light
most favorable to the nonmoving party. Sheridan v. NGK Metals
Corp., 609 F.3d 239, 251 n.12 (3d Cir. 2010). Once a properly
supported motion for summary judgment is made, the burden of
production then shifts to the nonmoving party, who must set forth
specific facts showing that there is a genuine issue for trial.
Anderson, 477 U.S. at 250.
3

The Montreal Convention modernized and consolidated an
earlier convention signed in 1929 and amended by several
agreements (the “Warsaw Convention”). See Multilateral
Convention and Additional Protocol between the United States and
Other Powers Relating to International Air Transportation,
Concluded at Warsaw, October 12, 1929; Proclaimed October 29,
1934, reprinted at 49 U.S.C. § 40105 note; Montreal Convention
3

May 28, 1999, ICAO Doc. 9740, S. Treaty Doc. No. 106-45, 1999 WL
33292734 (2000).
The defendant argues that serving the plaintiff a
vegetarian meal was not an “accident” as required by the
Convention to support a claim of liability, because she ordered a
vegetarian meal.

In addition, the defendant argues that it is

entitled to summary judgment on the plaintiff’s claims of posttraumatic stress disorder (“PTSD”), because the Convention does
not provide for recovery of mental injuries.
A.

Accidents Under the Montreal Convention
Chapter III, Article 17 of the Montreal Convention

says:
The carrier is liable for damage sustained in case of
death or bodily injury of a passenger upon condition
only that the accident which caused the death or injury
took place on board the aircraft or in the course of
any of the operations of embarking or disembarking.

explanatory note; Sompo Japan Ins., Inc. v. Nippon Cargo Airlines
Co., 522 F.3d 776, 780-81 (7th Cir. 2008). The Montreal
Convention was ratified by the U.S. Senate on July 31, 2003 and
became effective on September 5, 2003. Ehrlich v. Am. Airlines,
Inc., 360 F.3d 366, 371 n.4 (2d Cir. 2004). Although the
Montreal Convention is an entirely new treaty, the language
relevant to this case is similar to the earlier Warsaw
Convention.
4

Montreal Convention Art. 17 (emphasis added).4

The Montreal

Convention, like its predecessor, does not define the term
“accident.”
The Supreme Court defined the term accident in Air
France v. Saks.

470 U.S. 392, 394-95 (1985).

In Saks, a

passenger alleged that she suffered a hearing loss following the
plane’s normal descent to its destination.

Because the treaty

requires that an accident cause the alleged injury, the Court
concluded that liability “arises only if a passenger’s injury is
caused by an unexpected or unusual event or happening that is
external to the passenger.”

Id. at 405.

This definition of an

accident “should be flexibly applied after assessment of all the
circumstances surrounding a passenger’s injuries.”

Id.

“Any

injury is the product of a chain of causes, and we require only
that the passenger be able to prove that some link in the chain
was an unusual or unexpected event external to the passenger.”
Id. at 406.
In 2004, the Court reaffirmed its holding in Saks.
Olympic Airways v. Husain, 540 U.S. 644, 653-54 (2004).

In

Husain, the Court held that a flight attendant’s refusal to help
an asthmatic passenger avoid exposure to cigarette smoke in the

4

The earlier Warsaw Convention said: “The carrier shall be
liable for damage sustained in the event of the death or wounding
of a passenger or any other bodily injury suffered by a
passenger, if the accident which caused the damage so sustained
took place on board the aircraft . . . .” (emphasis added).
5

cabin qualified as an accident.

The Court held that an accident

had occurred because “the carrier’s unusual and unexpected
refusal to assist a passenger [by moving his seat] is a link in a
chain of causation resulting in a passenger’s pre-existing
medical condition begin aggravated by exposure to a normal
condition in the aircraft cabin.”

Id. at 646.

If a passenger is served a meal or drink that is
unexpected or contrary to his or her order, food service on a
flight can be the basis of an accident under the Montreal
Convention.

See, e.g., Horvath v. Deutsche Lufthansa, AG, No.

02-3269, 2004 WL 486976 (S.D.N.Y Mar. 12, 2004) (passenger served
salmon despite informing airline of her allergy to fish);

Scala

v. Am. Airlines, 249 F. Supp. 2d 176, 177 (D. Conn. 2003)
(passenger served cranberry juice with alcohol instead of plain
cranberry juice ordered, exacerbating existing heart condition);
Bouso v. Iberia Lineas Aereas De Espnana, No. 69-9094, 1998 WL
148422, at *2 (S.D.N.Y Mar. 27, 1998) (passenger injured by
foreign object in an in-flight meal).
There is no accident when the passenger is served what
he expected to be served.

In Farra, a passenger requested that

his meal be served immediately after take-off to avoid illness.
Farra v. Am. Airlines, No. 00-67, 2000 WL 862830 (E.D. Pa. June
28, 2000).

Sixteen days before his flight, he was informed by a

supervisor at American Airlines that this request would not be

6

accommodated, and his meal was served at the same time as the
other passengers.

The Court held that the meal service was not

an accident because his meal was served, as expected, at the same
time as other passengers.

“[E]xperiencing the expected is not

‘an unexpected or unusual event.’”

Id. at *3.

Therefore, if the plaintiff requested a gluten-free
meal but was served a meal with gluten, an accident occurred.

If

the plaintiff requested a vegetarian meal, and that is what she
was served, it is not unexpected or unusual that she was served
that meal, and there was no accident.
Taking the evidence in the light most favorable to the
plaintiff, there is enough of a dispute on the question of
whether the plaintiff ordered a gluten-free meal that the Court
must deny summary judgment.

The plaintiff testified that she

always orders a gluten-free meal.

This testimony could be

admissible as pattern or practice evidence, when combined with
booking records showing the plaintiff booked this flight and that
she has requested gluten-free meals in the past.

There is also a

dispute on whether the plaintiff informed the defendant’s
employees on board the flight that she needed to be served a
gluten-free meal and if this request was accommodated.
Because a disputed issue of fact exists on whether the
plaintiff ordered or requested a gluten-free meal for the flight,
the Court will deny the defendant’s motion for summary judgment

7

on this ground.

This denial is without prejudice to the

defendant’s ability to raise this argument after all the evidence
has been presented at trial.
B.

Recovery for Mental Injury
It is uncontested that recovery for purely mental

injures is barred by the Montreal Convention.
Inc. v. Floyd, 499 U.S. 530, 534 (1991).

Eastern Airlines,

In Floyd, the

plaintiffs brought suit for physic trauma experienced when their
plane lost its engines and prepared to land in the ocean before
the engine power was restored.

They did not suffer either

physical injuries or physical manifestation of their psychic
injuries.

Id. at 533, 552-53.

The Supreme Court held that

“Article 17 does not allow recovery for purely mental injuries.”
Id., 499 U.S. at 534 (emphasis added); see also El Al Israel
Airlines, Ltd. v. Tseng, 525 U.S. 155, 172 (1999) (“[The
passenger] sustained no ‘bodily injury’ and could not gain
compensation under Article 17 for her solely psychic or
psychosomatic injuries.” (emphasis added)).

The Court of Appeals

for the Third Circuit has held that there is likewise no recovery
for physical manifestations of a purely mental injury.
Terrafranca v. Virgin Atl. Airways Ltd., 151 F.3d 108, 111 (3d
Cir. 1998).
None of these cases, however, bar recovery under the
Montreal Convention for mental injury caused by physical injury.
8

Courts generally hold that mental injuries can be recovered “to
the extent the distress is caused by the physical injuries
sustained.”

In re Air Crash at Little Rock Ark., 291 F.3d 503,

509 (8th Cir. 2002) (collecting cases).

For example, in Erlich,

plaintiffs alleged both mental and physical injuries after their
plane overshot the runway and was abruptly stopped.
(2d Cir. 2004).

360 F.3d 366

In a thorough analysis of the text and history

of the treaty, the Court of Appeals for the Second Circuit held
that “[o]ur exhaustive examination . . . leads us to conclude
that a carrier may be held liable under Article 17 for mental
injuries only if they are caused by bodily injuries.”

Id. at

400.
The Court of Appeals for the Third Circuit has not
ruled on this issue specifically, but favorably cited Erlich in
an unpublished opinion.

In Bobian, the court held that

plaintiffs could not claim a physical injury by arguing that
their PTSD changed the chemistry of their brains.
Czech Airlines, 93 F. App’x 406 (3d Cir. 2004).

Bobian v.
The court said,

“our view is supported by a very recent exhaustive and scholarly
decision [in Ehrlich], where Judge Meskill held that a carrier
may be liable under Article 17 for mental injuries only if they
are caused by bodily injuries.”

Id. at 408 (emphasis added).5

5

The defendant points to language in the Bobian opinion
rejecting the argument that PTSD can be the basis of a physical
injury. See, e.g., id. at 407 (“Article 17 allows recover for
9

Thus to the extent the plaintiff can show that any
mental distress was caused by the physical injuries she alleges,
those injuries could be recoverable under the Montreal
Convention.

The Court will deny the defendant’s motion for

summary judgment on this ground.
III. Daubert Motion to Exclude Expert Testimony
The defendant moves to exclude some testimony of the
plaintiff’s expert witnesses, Dr. Tereo and Dr. Phillips.

The

defendant argues that both witnesses should be prevented from
testifying as to the plaintiff’s PTSD and that Dr. Phillips
should be barred from testifying about the flight attendant’s
treatment of the plaintiff.
Federal Rule of Evidence 702 allows a “witness who is
qualified as an expert by knowledge, skill, experience, training,
or education” to give opinion testimony.

Fed. R. Evid. 702.

Under this rule, the expert must present “scientific, technical,
or other specialized knowledge” that “will help the trier of fact

‘bodily injury’ but not for mental, psychic or emotional
injury.”) (“We have specifically rejected as Warsaw-compensable
injuries post-traumatic stress disorder and related emotional
maladies . . . .”). In the context of the case, it is clear the
court is referencing the earlier opinions cited above addressing
purely mental injuries. The lower court in Bobian adopted the
view that plaintiffs can recover for emotional harm proximately
caused by a physical injury, but found no evidence that the
physical injuries in the case caused the emotional ones, and the
circuit court did not address that issue. Bobian v. CSA Czech
Airlines, 232 F. Supp. 2d 319, 325 n. 11 (D.N.J 2002).
10

to understand the evidence or to determine a fact in issue.”

Id.

at 702(a); Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579,
590-91 (1993).
The trial court “must ensure that any and all
scientific testimony or evidence admitted is not only relevant,
but reliable.”

Daubert, 509 U.S. at 589.

this in a two-step inquiry.

A district court does

First, “the proffered ‘expert’ must

be qualified to express an expert opinion.”
193 F.3d 613, 664 (3d Cir. 1999).

In re TMI Litig.,

This requirement includes “a

broad range of knowledge, skills, and training.”
quotations omitted).
be reliable.”
A.

Id. (internal

Second, “the proffered expert opinion must

Id.
Dr. Tereo

Dr. Tereo is a psychoanalyst who opined that the
plaintiff suffers from PTSD as a result of her allergic reaction
on board the flight.

There is no dispute that Dr. Tereo is

qualified to express an expert opinion in psychiatry.

This

inquiry focuses on the second part of the TMI Litigation test,
whether Dr. Tereo’s testimony is reliable.

Factors relevant to

that inquiry include: whether the method used a testable
hypothesis, whether the method has been subject to peer review,
the potential rate of error of the method, what standards govern
the technique, the general acceptance of the method, and the nonjudicial uses of the method.

TMI Litigation, 193 F.3d at 664-65.
11

The standard for determining reliability “is not that high.”
at 665.

Id.

The test is whether the “the particular opinion is based

on valid reasoning and reliable methodology.”

Id.

The defendant argues that the methodology Dr. Tereo
used to diagnose the plaintiff is not reliable.

Specifically,

the defendant argues that Dr. Tereo did not use standardized
structured interviews to diagnose the plaintiff, but instead
relied upon the plaintiff’s self-reporting, and that Dr. Tereo
did not rule out other possible causes of the plaintiff’s alleged
mental injury, such as other past traumatic events.

Dr. Tereo

made his diagnosis of PTSD based on the Diagnostic and
Statistical Manual of Mental Disorder and his thirty five years
of clinical practice.

Def. Br., Ex. D (Tereo Dep.) at 41-42.

The Court concludes that Dr. Tereo’s opinion is
reliable.

The defendant relies upon medical practice guidelines,

rather than expert testimony or case law to argue that failure to
consider standardized structured interviews and rule out other
possible causes of the diagnosis render Dr. Tereo’s opinion
unreliable.6

These are issues more appropriate to cross-

6

The only case the defendant cites to support this argument
is Kador v. City of New Rds., where a district court offered a
conclusion, without any analysis, that the expert’s opinion that
the plaintiff suffered from PTSD “and Panic Disorder with
Agoraphobia” was “fundamentally unsupported” and therefore
unreliable. No. 07-682, 2011 WL 4889102, at * 2 (M.D. La. Oct.
13, 2011).
12

examination than exclusion under Daubert.

The Court, therefore,

will deny the Daubert motion as to Dr. Tereo.
B.

Dr. Phillips

Dr. Phillips is an allergist who concluded that the
plaintiff is allergic to wheat and gluten, is suffering from
PTSD, and that the defendant inadequately prepared its flight
attendants to properly treat the plaintiff.

The defendant does

not question Dr. Phillips’s expertise or testimony in the areas
of allergy, immunology, and epidemiology, but argues that he is
not entitled to testify beyond those areas.

The Court agrees.

Dr. Phillips does not consider himself an expert in the
field of psychology, psychiatry, or psychotherapy.
E (“Phillips Dep.”) at 17-18.

Def. Br., Ex.

He is not an expert in the area of

post-traumatic disorder or in the treatment or diagnostic
criteria of PTSD, although he occasionally encounters the
condition in his patients.

He has had no formal training in that

field aside from a medical school course in psychiatry.
91.

Id. at

His initial report says he anticipates rendering opinions in

the fields of allergy, immunology, and epidemiology, although he
offers opinions beyond this area.

Def. Br., Ex. B.

On the issue of the plaintiff’s PTSD diagnosis, Dr.
Phillips fails under the first TMI Litigation prong: he is not
qualified to offer expert testimony that the plaintiff suffers
from PTSD or the causes of that ailment.

13

In re TMI Litig., 193

F.3d at 664.

He is not an expert by skill or training in the

area of diagnosis or causation of PTSD, and occasionally treating
patients who have the disorder does not qualify him as an expert.
See Ferris v. Pa. Fed’n Broth. of Maint. of Way Empls., 153 F.
Supp. 2d 736, 743-44 (E.D. Pa. 2001) (practicing pathologist
specializing in pain management did not have the expertise in
psychology to testify about the plaintiff’s diagnosis of
depression or the cause of that disorder).
Dr. Phillips is likewise not qualified to opine on the
defendant’s training of its flight attendants or their ability to
address the plaintiff’s allergic reaction on the flight.

As an

expert in the area of allergy, he may testify about the symptoms
and treatment of an allergic reaction, but he cannot opine on the
training or abilities of the flight attendants.
The Court will grant the defendant’s Daubert motion as
to Dr. Phillips.
IV.

Motion to Strike
The defendant moves to strike a supplemental report by

Dr. Phillips.

The supplemental report was produced on February

27, 2012 as part of the plaintiff’s response to the defendant’s
Daubert and summary judgment motions.

The plaintiff argues that

the report is a supplement to Dr. Phillips’s original report
produced during discovery.

14

An expert report can be supplemented to correct errors
or omission.

Fed. R. Civ. P. 26(a)(3).

The rule cannot be used

to amend an expert report to avoid summary judgment.

Gallagher

v. So. Source Packaging, LLC, 568 F. Supp. 2d 624, 630-31
(E.D.N.C. 2008) (collecting cases holding this).

The

supplemental report is prejudicial to the defendant, as it
contradicts Dr. Phillips’s deposition testimony relied upon by
the defendant in its Daubert motion and motion for summary
judgment.
The Court will grant the defendant’s motion to strike.
V.

Motion to Compel
Finally, the Court will grant in part the defendant’s

motion to compel the production of compensation and medical
records.

As discussed at oral argument on June 6, 2012, most of

the issues in this motion have been resolved by the parties.
The defendant seeks documentation supporting tax
returns produced to the defendant in December of 2011.

The

plaintiff shall produce any documentation of compensation within
three weeks of her return to Italy.

An appropriate order will issue.

15