DVT cases in Texas could soar following California ruling

Marilyn Tennissen Oct. 18, 2007, 5:29am

A recent decision by a federal judge in California may open the doors for lawsuits by travelers who say airlines are responsible for their life-threatening blood clots, an issue that has been in mid-air since a Texas appellate court decision more than five years ago.

On Oct. 12, Northern District of California Chief Judge Vaughn Walker ruled that some cases against air carriers for a plaintiff's deep vein thrombosis can proceed if the blood clot is caused by unforeseeable circumstances.

Deep vein thrombosis, or DVT, is a blood clot caused by prolonged periods of immobility, such as overseas flights. In 2002, a passenger on an American Airlines flight from New York to Paris was awarded a settlement in a DVT suit.

Plaintiffs' lawyers around the country began to file similar lawsuits, seeing DVT litigation as what one lawyer called the "asbestos of the air." The claims alleged that airlines have a duty to warn passengers of the risk of developing clots from long periods of sitting and immobility.

But in spite of the potential litigation avalanche, no further settlements were reached.

That may have been in part because in July 2002 the U.S. 5th Circuit Court of Appeals ruled on a Texas case that the failure to warn passengers of the DVT risk does not meet the definition of "accident" as "unexpected or unusual," under the Warsaw Convention, a 1929 international travel treaty that restricts carriers' liability.

On June 18, 2001, Shawn Blansett, 36, a runner and well-conditioned athlete, suffered a stroke on a Continental Airlines flight from Houston to London. Blansett filed suit against Continental in the federal court in the Southern District of Texas on Dec. 16, 2002.

In media reports from the time, Blansett's lawyer Truett Akin of Galveston said that the objective of the suit was to win the airlines' cooperation in advising passengers how to avoid these injuries, which is hundreds of times more important than the routine warnings about turbulence and luggage in overhead bins.

Continental filed a motion to dismiss, which was denied by the district court. But Continental took it to the appeals court, which reversed the district court's decision.

On July 21, 2004, 5th Circuit Judge Jerry E. Smith issued the opinion.
"Ultimately, no jury may be permitted to find that Continental's failure to warn of DVT constituted an 'accident.' Continental's policy was far from unique in 2001 and was fully in accord with the expectations of the FAA. Its procedures were neither unexpected nor unusual," he wrote. "Concluding that Continental's failure to provide DVT warnings and instructions could not have constituted an 'accident" … we reverse and remand."

This followed a similar decision by the same Appeals Court that dismissed a Western Louisiana District Court suit against Delta in April. Before these decisions -- the first by an appeals court relating to DVT lawsuits -- district courts were divided over whether to allow DVT suits against airlines to proceed.

After those decisions, many airline defendants decided it was worth taking DVT cases all the way to trial, rather than settle with plaintiffs.

In 2004 a nationwide set of DVT cases were consolidated in Judge Walker's court in San Francisco, making it the DVT "proving ground. "Many plaintiffs' attorneys expected the California courts to reject the Blansett decision.

In this month's ruling, Walker wrote that the development of DVT is in itself not an accident, but DVT developed after a passenger complains of pain from a cramped seat and is denied the opportunity to move to a less-cramped space is considered an accident.

The California decision marks the first time a federal court has denied an airlines' request for summary judgment in a DVT case.

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