Bobian v. Czech Airlines , 93 F. App'x 406 ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
3-29-2004
Bobian v. Czech Airlines
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-1262
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"Bobian v. Czech Airlines" (2004). 2004 Decisions. Paper 908.
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NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 03-1262
________________
BOB BOBIAN; FRANCISCO BONILLA; APOLONIO CASTILLEJA;
CARLOS CHAVEZ; ERIC DICESARE; MIGUEL ESCAMILLA;
RAUL F. GARZA; RUBEN GONZALES; JOSE GUAJARDO;
JAQUES A. HOWARD; JAIME JIMINEZ; JUAN CARLOS JIMINEZ;
MARIA JIMINEZ; VALENTINE MARTINEZ; MARIO MENCOS;
RUBEN MENDEZ; SUSAN MENDEZ; JOSE PABLO MONROY;
DEMETRO MONTERO; VICTOR QUINONES; JOSE SANTOS;
DEBORAH TOWNSEND; GENE TOWNSEND; KAYLA TOWNSEND;
BRENDA WALKER; MICHAEL WALKER,
Appellants
v.
CZECH AIRLINES;
CONTINENTAL AIRLINES, a foreign corporation for profit
Czech Airlines, Appellee
____________________________________
On Appeal From the United States District Court
For the District of New Jersey
(D.C. No. 02-cv-01627)
District Judge: Honorable Dickinson R. Debevoise
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
March 26, 2004
Before: AMBRO, CHERTOFF and BECKER,
Circuit Judges
(Filed: March 29, 2004)
______________________
OPINION
_______________________
BECKER, Circuit Judge.
This is an appeal from an order of the District Court entering judgment under Fed.
R. Civ. P. 54(b) on its order of October 30, 2002 granting the motion for partial summary
judgment of defendant CSA Czech Airlines (Czech Air). The District Court entered
judgment against twenty-eight of the twenty-nine plaintiff-appellants on the ground that
they had not shown evidence of “bodily injury” sustained on Czech Air Flight 52 on
September 16, 1999 that might be compensable under Article 17 of the Warsaw
Convention.1 For the reasons that follow, we agree that Judge Debevoise’s decision was
correct, hence we affirm. Because the parties are fully familiar with the background facts
and procedural history we need not set them forth, and limit our discussion to our ratio
decidendi.
It is undisputed that the plaintiffs were fare paying passengers on Flight 52 en
route from Prague, Czech Republic to Newark, New Jersey on September 16, 1999.
Plaintiffs allege that Czech Air recklessly and intentionally—to save money that would be
incurred by a missed flight connection—flew the aircraft into Hurricane Floyd, subjecting
1
With respect to the remaining plaintiff, Eugene Townsend, Czech Air was granted
summary judgment as to claims arising from all asserted injuries except a heart attack that
Townsend apparently suffered as a result of turbulence on Flight 52.
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plaintiffs to forty-five minutes of physical battery and sheer terror of almost certain death.
They allege that, as a result of Czech Air’s “willful, reckless and intentional acts,”
plaintiffs suffered severe “physical injuries and physical manifestations of emotional
injuries, including physical injuries, physical assault and battery upon their persons,
conscious pain and suffering, emotional trauma, mental anguish, physical manifestation
of emotional trauma, loss of enjoyment of life, medical expenses, roll, pitch, yaw,
acceleration, deceleration, positive and negative Gs.”
Plaintiffs’ central claim is that they suffer from the physical injury of post-
traumatic stress disorder (“PTSD”) which they maintain is physically based in the
neurochemical and neurophysiologic reactions in critical brain areas dedicated to
emotional control and regulation. In their submission, the phrase is used to describe the
symptoms exhibited by those persons who suffer physical injury and physical damage to
the brain as a result of the excessive release of excitatory neurotransmitters that produce a
local excitotoxic reaction and over-abundant release of glucocorticoids. These
biochemical releases, which occur during times of extreme stress, are said to physically
damage and kill cells within the brain, resulting in physical destruction (atrophy) of
portions of the hippocampus of the brain.
Plaintiffs are well aware that Warsaw Article 17 allows recovery for “bodily
injury” but not for mental, psychic or emotional injury, and that, under our jurisprudence,
a claimant alleging bodily injury under Article 17 must demonstrate that he suffered a
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“palpable, conspicuous physical injury.” We have specifically rejected as Warsaw-
compensable injuries post-traumatic stress disorder and related emotional maladies,
which are what plaintiffs allege here. See Terrafranca v. Virgin Atl. Airways Ltd., 151
F.3d 108 (3d Cir. 1998). They seek to evade our construction of the “lesion corporelle”
provision of the Warsaw Convention by contending that post-traumatic stress has caused
physical changes to their brain cells and that those changes supply the “bodily injury”
required by Article 17.
We agree with Judge Debevoise that the relationship between the physical and
emotional dimensions of human existence was well known to the drafters of the Warsaw
Convention who nonetheless required “lesion corporelle.” In our view, plaintiffs’
position on post-traumatic stress disorder would abolish the requirement of palpable and
conspicuous physical injury, but this can only be done by a change to the language of the
Convention. We also note that none of the plaintiffs has brought forward cognizable
evidence that his or her brain has changed physically from an earlier state. Our view is
supported by a very recent exhaustive and scholarly decision, Ehrlich v. American
Airlines, Inc., 2004 WL 419438 (2d Cir. March 8, 2004), where Judge Meskill held that a
carrier may be liable under Article 17 for mental injuries only if they are caused by bodily
injuries.
Plaintiffs cite cases from other jurisdictions in an effort to support their claims, but
we are bound by Terrafranca, and are, at all events, unpersuaded by their authority.
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We have not dwelled on plaintiffs’ arguments that: (1) the Southern District of
Texas erroneously transferred this case to the District Court for the District of New Jersey
in violation of its prior orders allowing for briefing of the transfer issues; (2) the Texas
District Judge’s purported affirmation of his transfer order after that Court had divested
itself of jurisdiction has no legal significance; and (3) venue was improper in New Jersey.
We do not have the power to review Judge Hoyt’s original transfer order (as opposed to
Judge Debevoise’s order declining to retransfer); that review is available only through
mandamus or certification to the Fifth Circuit. Plaintiffs did not timely seek either of
those remedies in the Fifth Circuit. We also think that Judge Debevoise correctly refused
to retransfer the underlying action to the Southern District of Texas. We note in this
regard that Judge Debevoise correctly concluded that a “substantial portion” of the events
or omissions giving rise to the claim occurred in New Jersey. Finally, any procedural
error Judge Hoyt may have made was promptly cured, was harmless and is, at all events,
unreviewable by this Court.
The judgment of the District Court will be affirmed.
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