United States District Court, D. Connecticut
MEMORANDUM OF DECISION
Michael P. Shea, U.S.D.J.
Indrawatie Shiwbodh brought this action against defendant
Caribbean Airlines Limited for injuries she allegedly
suffered in the July 30, 2011 crash of Caribbean Airlines
Flight BW523. After the case returned to this Court following
consolidated multi-district litigation proceedings concerning
the plane crash in the United States District Court for the
Eastern District of New York, the parties agreed that the
sole remaining disputes between them were whether the crash
proximately caused the plaintiff's injuries and the
amount of damages to which the plaintiff was entitled. To
decide these issues, I held a three-day bench trial from
December 11th to December 13th, 2017,
and now set forth my findings of fact and conclusions of law,
Fed.R.Civ.P. 52(a)(1), which can be summarized as follows:
the defendant proximately caused the following injuries to
the plaintiff: (1) her ankle injury through July 29, 2015;
(2) her knee injury through September of 2012; (3) her back
injury through October of 2011; and (4) her head injury
through May of 2012; and I find that the plaintiff is
entitled to $68, 093.04 in economic damages and $204, 279.12
for pain and suffering, for a total judgment amount of $272,
372.16. In light of this disposition, I deny the
defendant's oral motion for judgment as a matter of law
(ECF No. 62).
Findings of Fact
Court makes the following findings of fact based on witness
testimony, trial exhibits, and the stipulation of facts
(“SOF”) submitted with the parties' joint
trial memorandum (“JTM”).
The Plaintiff's Background
plaintiff is a forty-seven year old resident of Waterbury,
Connecticut. (Trial Transcript (“TT”) at 10). She
was born in Guyana and came to the United States in 1988.
(Id. at 10-11). She is currently married to Yadram
Shiwbodh, and they have one child, Maleisa Shiwbodh.
(Id. at 16-17). Shortly after arriving in the United
States, the plaintiff attained a job at
Covidien as an assembler. (Id. at 13). She
worked on an assembly line that produced hospital
instruments. (Id. at 13). Her duties including
assembling the instruments and putting them in trays.
(Id. at 14). This activity included “bend[ing]
and pick[ing] [the trays] up, ” and then lifting them
onto a rack about six or seven feet away. (Id. at
15-16). The plaintiff spent “a couple hours
standing” and a “couple hours sitting” each
day as she performed her duties. (Id. at 15). She
would hold this job until the events underlying this case. In
addition to her employment at Covidien, the plaintiff also
did the majority of the household chores for her family.
(Id. at 21-23).
plaintiff's health was generally good prior to 2011, with
a few exceptions. She suffered from high blood pressure,
hypercholesterolemia, and diabetes. (Id. at 18;
Trial Exhibit (“Tr. Ex.”) 10A). In 2007, the
plaintiff was involved in a car accident. (Id. at
19-20; Tr. Ex. 25-A). She suffered a lower back injury as a
result of the crash, and had to miss a short period of work.
(Id.). She was diagnosed with “lumbar disc
displacement” and prescribed various pain medications.
(Tr. Ex. 25A). An x-ray taken a few weeks after the incident
showed “[m]oderate degenerative changes of the L4-5
intervertebral disc, ” along with “evidence of a
posterior annular fissure and broad based bulging. . .
.” (Tr. Ex. 16CC). The plaintiff had difficulty
performing her work for several weeks after the accident due
to her injuries, but steadily improved with time. (Tr. Ex.
25B-E). By 2011, her back no longer hindered her ability to
work. (TT at 20-21).
The Plane Crash
30, 2011, the plaintiff embarked on a vacation to Guyana with
Yadram and Maleisa. (Id. at 24). She was traveling
as a passenger on board Caribbean Airlines Flight BW523 from
New York to Georgetown, Guyana. (SOF at ¶ 3-4). As the
plane landed at Cheddi Jagan International Airport in
Georgetown on the night of July 30, 2011, it overran the
runway, resulting in the rupture of the plane's fuselage.
(Id. at 4; TT at 25; Tr. Ex. 20B). The
plaintiff's head hit the seat in front of her upon
impact, leaving her with a gash on the top of her head. (TT
at 25-26; Tr. Ex. 20A). After the plane skidded to a halt,
Yadram opened an emergency exit onto the wing of the plane.
(TT at 26). Yadram then proceeded through the emergency exit
onto the wing of the plane, followed closely by the
plaintiff. (TT at 28). The wing was suspended approximately
8-12 feet above the ground, which was sandy. (TT at 31;
Exhibit 20A). Shortly after walking onto the wing, Yadram
slipped and fell to the ground. (TT at 28). The plaintiff
then slid from the wing onto the ground after him.
(Id. at 29). She landed on her feet and then
“[fell] to the ground.” (TT at 31). Shortly
thereafter, the plaintiff left the area with the other
passengers from the plane. (TT at 32). She walked for
approximately two hours in search of the terminal with the
other passengers. (Id. at 93). She was eventually
taken to a hospital where she received more than 10 stitches
on her head. (TT at 32; Tr. Ex. 20B). The plaintiff
subsequently went to another hospital, which proceeded to
redo the stitches on the plaintiff's head laceration. (TT
returning from Guyana, the plaintiff sought additional
medical treatment for her injuries. She complained initially
of pain in the “right side of [her] scalp, head, neck,
back, right leg, [and] both feet.” (Tr. Ex. 2A). In
August, 2011, her primary care provider, Dr. Lorenzo Galante,
diagnosed her with neck pain, whiplash, a back sprain, a head
injury, costochondritis (an inflammation of the cartilage
connecting the ribs to the sternum) and posttraumatic stress
disorder. (Id.). Various diagnostic imagery taken of
the plaintiff did not demonstrate any fractures. (Tr. Ex.
16A-16O). By September, the plaintiff still complained of
lower back pain, neck pain, headaches, and ankle pain. (Tr.
Ex. 2B). The only image of note showed that the plaintiff had
a “moderate degenerative change of the L4-L5
disc” with an “annular tear broad-based annular
bulge, ” (Tr. Ex. 16N). This finding was nearly
identical to the plaintiff's injuries following her July,
2007 car accident. (Tr. Ex. 16CC). Over the course of the
next few months, the plaintiff received injections in her
back, knee, and right ankle to address her ongoing reports of
pain in those areas. (Tr. Ex. 5A-5D). The injections had a
temporary salutary effect but the plaintiff reported that the
pain ultimately returned. (Tr. Ex. 5D-5E; TT at 40). She also
took part in physical therapy at Village Street Physical
Therapy in New Haven. (See Tr. Ex. 3). In the
interim, the plaintiff was unable to return to work or to
perform household chores. (TT at 41-42).
early 2012, the plaintiff continued to seek treatment for
pain in her back, right knee, head, and right ankle. (Tr. Ex.
2G; 4F; 5E-F; 6A-C). Despite this continuing pain, the
plaintiff attempted to return to her job at Covidien in the
spring of 2012. (TT at 54-55). She was physically unable to
perform the duties of her job, however, and was subsequently
terminated. (TT at 55, 120-121). The plaintiff's
treatment providers were unable to zero in on an exact cause
of her symptoms. Her diagnoses ranged from post-traumatic
fibromyalgia (see Tr. Ex. 2H) to
“musculoskeletal strain injuries” (see
Tr. Ex. 6B) to simply “right knee and right ankle pain
symptoms” (see Tr. Ex. E). The plaintiff's
recommended treatments were similarly varied. Dr. Michael P.
Connair, an orthopedist, provided the plaintiff with
therapeutic injections in her right knee. (Tr. Ex. 5E-F). Dr.
Adam Mednick, a neurologist, recommended that the plaintiff
engage in physical therapy and over the counter pain relief
medications for her head pain. (See Tr. Ex. 6B). Dr.
Judith Gorelick, also a neurologist, recommended that the
plaintiff continue a conservative course of treatment
involving physical therapy, weight loss, and exercise.
(See Tr. Ex. 4G).
this plethora of treatments, the plaintiff reported that her
ankle, back, and right knee pain continued unabated during
the summer of 2012. In late June, 2012, an x-ray of the
plaintiff's right ankle revealed the existence of
“[s]mall osteophytes”-bone spurs-and a small
loose body. (See Tr. Ex. 5H). Dr. Connair concluded
that these findings could be “degenerative or related
to prior trauma, ” and that they could warrant further
“arthroscopic exploration” to determine if they
were the source of the plaintiff's ankle pain.
(Id.). He later wrote the plaintiff a prescription
for an “Arizona ankle splint” for her right
ankle; the plaintiff did not fill the prescription, however,
due to the $400 copayment associated with the ankle splint.
(Tr. Ex. 5I-J). In August, Dr. Connair noted that
arthroscopic exploration of both the right ankle and the
right knee could also be helpful. (Tr. Ex. 5I). The plaintiff
also reported continuing lower back pain during this time
period, and Dr. Galante prescribed her a number of
painkillers for this condition. (Id.). The
plaintiff's headaches, however, apparently diminished
significantly during the summer of 2012. Dr. Galante wrote in
July of 2012 that the plaintiff was “[n]o longer having
headaches where she hit her head on [the] seat in front of
her” during the plane crash and that she denied:
“tingling/ numbness, paresthesia, weakness, dizziness,
change in vision, [and] loss of consciousness.” (Tr.
October of 2012, the plaintiff underwent the first of several
surgeries on her right ankle. Dr. Richard Zell performed the
surgery-an ankle arthroscopy, debridement, and cheilectomy-on
October 18, 2012. (See Tr. Ex. 7B-C). After the
surgery, the plaintiff initially reported positive results.
Dr. Zell noted a week after the surgery that the plaintiff
stated that “her pain has been controlled
overall”; he placed the plaintiff's ankle in a boot
to heal. (Tr. Ex. 7D). A month after the surgery, however,
the plaintiff reported “continued pain” and
“persistent swelling, ” although she noted that
“the sharp pain that she had before surgery is
decreased.” (Tr. Ex. 7E). Dr. Zell was satisfied with
her progress. (Id.). Two months after the surgery,
the plaintiff “[felt] like her recovery [was] going
well” despite continued pain in her right ankle and she
noted “significant improvement in her symptoms . . .
compared to her preoperative condition. (Tr. Ex. 7G). By
March of 2013, however, the plaintiff reported that the pain
in her ankle was once again starting to increase. (Tr. Ex.
7H). Dr. Zell decided to recommence the treatment of the
plaintiff's ankle with therapeutic injections. (Tr. Ex.
meantime, the plaintiff's back pain worsened and her head
pain returned after her ankle surgery. Dr. Martin Hasenfeld,
a physiatrist in the same office as Dr. Gorelick, reported in
November of 2012 that the plaintiff had noticed
“increased pain in her low back.” (Tr. Ex. 4H).
He decided to recommence the injections into the
plaintiff's back. (Id.). Unlike with the
previous injections, however, the plaintiff reported that
“she did not have much relief from these
injections.” (Tr. Ex. 4I). The plaintiff's
headaches also apparently returned at some point during this
period. Dr. Galante noted in October of 2012 that the
plaintiff complained of a “headache.” (Tr. Ex.
2M). An MRI of the plaintiff's head was normal, and Dr.
Galante attributed the plaintiff's pain to a
“tension headache.” (Tr. Ex. 2N). She reported in
February of 2013 that, although her headaches had undergone a
“major improvement, ” they still lasted for an
hour each day. (Tr. Ex. 2N). Dr. Galante prescribed her
another pain medication for this condition and her headaches
steadily improved, although they did not abate. (Tr. Ex. 2O).
plaintiff's ankle, however, continued to deteriorate
throughout 2013. After a series of injections provided little
apparent relief, the plaintiff went to see Dr. Louis Iorio, a
specialist in disorders of the foot and ankle, in May of
2013. (Tr. Ex. 9). Dr. Iorio noted that he was not
“able to identify either on clinical exam, plain
radiographs, or MRI scanning a specific clearcut cause for
her diffuse symptomatology” regarding her ankle.
(Id.). He suspected, however, that the
plaintiff's pain most likely resulted “from early
posttraumatic degenerative involvement particularly of the
anterior aspect of the ankle.” (Id.). He noted
that such a diagnosis was “consistent with the
arthroscopic findings of a loose osteochondral fragment at
the anterolateral aspect of the distal tibia which was
removed at the time of [the plaintiff's surgery in
October of 2012].” (Id.). He concluded that
there was not “any particular surgical intervention
that [was] likely to improve [the plaintiff's] symptoms
at this time especially given the more global nature of her
complaints.” (Id.). He did, however, recommend
further treatment and provided his findings to Dr. Zell.
(Id.). Dr. Zell noted in his next report, dated May
22, 2013, that the plaintiff had reported her ankle symptoms
had worsened. (Tr. Ex. 7L). He stated that he told the
plaintiff “that it is possible that she will have
persistent symptoms . . . likely related to the injury that
she had initially and chronic scarring” on her ankle.
point, the plaintiff switched doctors and began treating with
Dr. Enzo Sella, another orthopedic specialist. He noted that
there was “an objective finding of peroneal tendon
tear, ” and that this “necessitate[d] exploration
and fixation.” (Tr. Ex. 8A). Dr. Sella subsequently
performed the plaintiff's second ankle surgery on August
21, 2013. During the surgery, however, he could not find a
tear of the peroneal tendon. (Tr. Ex. 8C). He did perform
some restorative maneuvers on the ankle tissue, including
excising low-lying muscle fibers. (Id.). A month
later, the plaintiff reported some residual swelling and
numbness in a part of her foot. (Tr. Ex. 8G). Dr. Sella noted
that such numbness would shrink to some extent but would
always be present in that area of her foot. (Id.).
Three months later, however, the plaintiff reported continued
pain in her right ankle where she had had the surgery. (Tr.
Ex. 8H). Dr. Sella prescribed her various painkillers as
interim, the plaintiff reported that her headaches had
worsened. She reported to Dr. Galante that her headaches
continued “everyday 24/7, [in her] right ear and
eye.” (Tr. Ex. 2P). Dr. Galante prescribed her various
painkillers and recommended that the plaintiff lose weight;
he described the plaintiff as “grossly
overweight.” (Tr. Ex. 2P-R). In November of 2013, Dr.
Galante noted that the plaintiff had begun complaining of
dizziness associated with her headaches. (Tr. Ex. 2S). At
this time, Dr. Galante concluded that the plaintiff's
condition had “become chronic.” (Id.).
plaintiff sought continued treatment for pain. At a January,
2014 appointment with Dr. Sella, the plaintiff reported
continued pain in her ankle. (Tr. Ex. 8I). Dr. Sella ordered
an MRI and concluded that that plaintiff had tendinosis
(damage to a tendon at a cellular level), and mild tendonitis
in her right foot. (Tr. Ex. 8J). He determined that this
meant the plaintiff was “still recovering from her
injury” and that she was “not a surgical
candidate anymore.” (Id.). He also
“released [the plaintiff] to a light duty type of
work” with the condition that “she should not do
any prolonged walking, climbing, or walking on uneven
ground.” (Id.). In April of 2014, Dr. Sella
concluded the plaintiff was at maximum medical improvement,
and that she had suffered “a total of 14% impairment
and loss of function of the right foot and ankle.” (Tr.
respect to the plaintiff's headaches, Dr. Galante
continued prescribing various cocktails of painkillers
without any apparent success. (Tr. Ex. 2T-V). The plaintiff
also visited a neurologist recommended by Dr. Galante, Dr.
Moshe Hasbani, in January of 2014. (Tr. Ex. 10A). He
concluded that the plaintiff had “[p]osttraumatic
headaches” and potentially “posttraumatic
temporomandibular joint dysfunction”-he also noted that
the plaintiff had “early peripheral neuropathy likely .
. . related to diabetes.” (Id.). He
recommended a trial of Nortriptyline, an antidepressant.
(Id.). In August of 2014, the plaintiff reported
continued pain in her head. (Tr. Ex. 2X). According to Dr.
Galante's records, these complaints continued through the
rest of the year and into the next. (Tr. Ex. 2Y-AA).
April of 2015, the plaintiff turned to yet another
orthopedist, Dr. Allen Ferrucci, in search of a salve for her
ankle pain. Dr. Ferrucci noted that the plaintiff had
“extensive scar tissue in her peroneal tendons and
possibl[e] tearing in this area again.” (Tr. Ex. 11A).
He ordered an MRI, which he determined was “suggestive
of pain that will not get better based on the tearing of the
peroneal tendons.” (Tr. Ex. 11B). He concluded that
“an ankle arthroscopy with extensive debridement, [and]
trimming of the peroneal tendons” could be helpful.
(Id.). He also noted, however, that given arthritic
changes in the ankle joint, the plaintiff could require
“much more significant surgery including a possible
[ankle fusion]” in the future. (Id.). In July
of 2015, the plaintiff chose surgery. (Tr. Ex. 11D). Dr.
Ferrucci performed the operation- which included a
debridement and peroneal tendon repair-on July 29, 2015. (Tr.
Ex. 11E). He reported that the plaintiff's “ankle
was stable” at the end of the surgery. (Id.).
In a follow-up appointment a week later, Dr. Ferrucci noted
that the plaintiff had not been practicing proper
post-operative care but that she was nonetheless progressing
well. (Tr. Ex. 11F). Dr. Ferrucci instructed the plaintiff on
the importance of proper post-operative care. (Id.).
However, the plaintiff would continue to disregard Dr.
Ferrucci's instructions to stay off of the ankle and to
keep it elevated properly. (See Tr. Ex. 11G-I).
Nonetheless, as of October, 2015, Dr. Ferrucci concluded that
the plaintiff's ankle was healing as expected. (Tr. Ex.
the plaintiff continued seeking new treatments for her
headaches and back pain, along with treatment for her high
blood pressure. She saw Dr. Hasbani again in June of 2015 for
her headaches. (Tr. Ex. 10B). He noted that an MRI taken in
March of that year showed “scattered punctate foci of
increased T2 signal with [possible etiologies] including
migraines, vasculopathy, and microvascular ischemic
changes.” (Id.). He also noted that there
appeared to be “crepitation of the right
temporomandibular joint and limitation of movement.”
(Id.). He instructed the plaintiff to continue
taking the Nortriptyline and recommended that she see an oral
surgeon. (Id.). The plaintiff also once again began
seeking treatment for her back pain in June of 2015, this
time from Dr. Kenneth Kramer, an orthopedist. (Tr. Ex. 13A).
Dr. Kramer ordered an MRI and discovered an “L4-L5
bulge and annular tear, ” along with “a slight
right-sided protrusion.” (Tr. Ex. 13D). He concluded
that “the L4-L5 disk [was] the proximal source of
pain” and suggested the possibility of an “L3-L4,
L4-L5 discogram.” (Id.).
plaintiff also saw a new physician, Dr. Brian Coyle, a
specialist in vascular disorders, in May and June of 2015.
(See Tr. Ex. 26A-B). Dr. Coyle instructed the
plaintiff on how to better control her blood pressure.
(Id.). In November, 2015, Dr. Coyle recommended that
she undergo a procedure to treat “severe reflux”
in her “right great saphenous vein” on her leg.
(See Tr. Ex. 26C). This procedure was performed
successfully in December of 2015. (See Tr. Ex. 26E).
While Dr. Coyle reported that this procedure apparently
decreased swelling in the plaintiff's right leg
(see Tr. Ex. 26F), there is no indication in the
record that it improved the plaintiff's other injuries.
Dr. Coyle would later conclude that the plaintiff's right
leg saphenofemoral reflux was not related to the plane crash.
(See Tr. Ex. 26G).
fall of 2015, the plaintiff's right knee pain returned.
Dr. Ferrucci noted in November of 2015 that in addition to
the persistence of the plaintiff's ankle pain, the
plaintiff also reported “a new complaint of knee
pain.” (Tr. Ex. 11J). He also wrote that the plaintiff
“did not have any pain in her knee prior to this most
recent surgery.” (Id.). Dr. Ferrucci concluded
that the plaintiff's new knee injury was connected to her
ankle injury, and that “a change in her gait pattern
[was] contributing and causing the knee pain.”
(Id.). In the meantime, the plaintiff's ankle
injury persisted. Dr. Ferrucci noted in January of 2016 that
it “seem[ed] like the surgery has taken the edge [off]
for [the plaintiff], but [that] she [was] still having
significant pain at times” in her ankle. (Tr. Ex. 11K).
He noted that the plaintiff was “likely looking at [an
ankle fusion] at some point in the future, but [that he
wanted] to try to delay that as long as possible, and [the
plaintiff] underst[ood] that.” (Id.). At this
time, the plaintiff also went to see a pain specialist, Dr.
Rakesh Patel, to help treat her ankle pain. (Tr. Ex. 14A).
plaintiff sought further treatment for her back and head in
the spring of 2016. She saw Dr. Kramer, who ordered another
MRI of the plaintiff's back. (Tr. Ex. 13E-F). Dr. Kramer
noted that the MRI showed “[m]ild degenerative change
with central disc protrusion at the L4-L5 level.” (Tr.
Ex. 13F). He also diagnosed the plaintiff with sciatica. (Tr.
Ex. F-G). In March of 2016, the plaintiff returned to Dr.
Hasbani seeking treatment for her continued head pain. (Tr.
Ex. 11C). He again concluded that the plaintiff suffered from
“[p]osttraumatic headaches with migraine-like
components, ” along with myofacial pain.
(Id.). He also noted that “[t]hese are related
to her injury suffered during the plane crash on July 30,
2011” but did not elaborate on his rationale for this
wore on, the plaintiff's right knee worsened while her
ankle largely remained the same. Dr. Ferrucci noted in
September that the plaintiff's ankle “ha[d] not
changed significantly” but that she complained of
“increased pain in her right knee.” (Tr. Ex.
11L). He concluded that the plaintiff's worsening knee
condition was “related to change in her gait pattern
related to her right ankle.” (Id.). In October
of 2016, Dr. Ferrucci diagnosed the plaintiff with right
ankle arthritis and chondromalacia patella in her knee. (Tr.
Ex. 11M). By February of 2017, Dr. Ferrucci had concluded
that the plaintiff had arthritis in both her ankle and her
knee, and that both would “require surgical
intervention at some point due to the increased pain and
swelling that she [was] having.” (Tr. Ex. 11N). In the
interim, however, he provided the plaintiff with a
therapeutic knee injection. (Id.). He recommended a
similar treatment for her ankle. (Tr. Ex. 11O). Finally, he
suggested that the plaintiff return to Dr. Kramer for her
lower back pain. (Id.). She did so and Dr. Kramer
reiterated his prior assessment of sciatica. (Tr. Ex. 13H-I).
plaintiff's symptoms continued on into the summer of
2017. The plaintiff visited another neurologist, Dr. Deena
Kuruvilla, in July of 2017. (Tr. Ex. 15). Dr. Kuruvilla
conducted a full examination of the plaintiff and concluded
that she suffered from chronic migraines and potentially also
chronic pain syndrome. (Id.). In August of 2017, Dr.
Ferrucci examined the plaintiff and noted that she still had
“significant pain and discomfort” in “her
knee and her ankle, ” and that she had developed a
possible “large Baker's cyst” in her right
knee. (Tr. Ex. 15R). He noted that the plaintiff
“understands that she is looking at knee replacement of
her right knee and a right ankle fusion at some point in the
future” but that “[h]opefully, that can be
trial, the plaintiff testified that she still has headaches
“all the time, ” that the headaches have never
let up since the crash, that the severity of the headaches
has never varied (except “a little bit” when she
takes Tylenol), and that her head pain “right
now” rated a ten on a scale of one to ten. (TT at
Conclusions of Law
Warsaw and Montreal Conventions
Court has subject matter jurisdiction over this case under 28
U.S.C. § 1330(a) (“Actions against foreign
states”) as the defendant is a “foreign
state” as that term is defined in the Foreign Sovereign
Immunities Act of 1976, 28 U.S.C. § 1603(a). The parties
are in agreement that the plaintiff's claims are
exclusively governed by a treaty of the United States known
as the Convention for the Unification of Certain Rules
Relating to International Carriage by Air, done at Montreal,
Canada on May 28, 1999 (“Montreal Convention”),
reprinted in S. Treaty Doc. No. 106-45, 1999 WL
33292734 (1999). The Montreal Convention is essentially a
modern iteration of the Convention for the Unification of
Certain Rules Relating to International Transportation by
Air, Oct. 12, 1929 (“Warsaw Convention”), 49
Stat. 3000 (1934), 137 L.N.T.S. 11, reprinted in 49 U.S.C.
§ 40105 note. See Ehrlich v. American Airlines,
Inc., 360 F.3d 366, 371 n. 4 (2d Cir. 2004)
(“[T]he Montreal Convention is an entirely new treaty
that unifies and replaces the system of liability that
derives from the Warsaw Convention.”).
cardinal purpose of the Warsaw Convention . . . [was] to
achiev[e] uniformity of rules governing claims arising from
international air transportation.” El Al Israel
Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 169
(1999) (internal quotation marks omitted). To achieve this
purpose, “the Warsaw Convention created a comprehensive
liability system to serve as the exclusive mechanism for
remedying injuries suffered in the course of the
international transportation of persons, baggage, or goods
performed by aircraft.” King v. American Airlines,
Inc., 284 F.3d 352, 356-57 (2d Cir. 2002) (internal
quotation marks omitted). The Montreal Convention, which
entered into force in the United States in 2003, advances a
similar goal. See Montreal Convention, pmbl. (noting
the goal of the state parties to the convention as
“reaffirming the desirability of an orderly development
of international air transport operations and the smooth flow
of passengers, baggage and cargo. . .”). “Under
the scheme provided for by the Warsaw Convention and Montreal
Convention . . ., passengers are ‘denied access to the
profusion of remedies that may exist under the laws of a
particular country, so that they must bring their claims
under the terms of the Convention or not at all.'”
Sanches-Naek v. TAP Portugal, Inc., 260 F.Supp.3d
185, 190 (D. Conn. 2017) (quoting King, 284 F.3d at
operative portion of the Montreal Convention in this case is
Article 17. Article 17 provides that a “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.” Montreal Convention, Art. 17. This
Article “subjects international carriers to strict
liability for . . . injuries sustained on flights connected
with the United States.” E. Airlines, Inc. v.
Floyd, 499 U.S. 530, 552 (1991). To recover under Article 17,
a passenger must prove that an “accident has . . .
caused [her] to suffer” an injury. Id. Thus,
to recover under the Montreal Convention, a passenger must
demonstrate the existence of (1) an accident (2) that caused
(3) an injury.
“accident” for the purposes of the Montreal
Convention is defined as “an unexpected or unusual
event or happening that is external to the passenger.”
Air France v. Saks, 470 U.S. 392, 405 (1985). An
accident causes an injury for the purposes of the Montreal
Convention if it proximately causes the injury. See
Margrave v. British Airways, 643 F.Supp. 510, 512
(S.D.N.Y. 1986) (“Traditionally, courts have applied
proximate cause analysis in determining an air carrier's
liability under the Warsaw Convention.”); Dizon v.
Asiana Airlines, Inc., 240 F.Supp.3d 1036, 1045 (C.D.
Cal. 2017) (granting summary judgment to defendant air
carrier because plaintiff did not establish accident was
proximate cause of injuries). Finally, an injury for the
purposes of the Montreal Convention encompasses “death,
physical injury, or physical manifestation of injury.”
E. Airlines, Inc., 499 U.S. at 552 (interpreting
Article 17 of the Warsaw Convention). The Supreme
Court has not addressed whether a passenger can recover for a
psychic injury accompanying a physical injury under Article
17. See Id. (noting that the Court
“express[ed] no view as to whether passengers can
recover for mental ...