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Shiwbodh v. Caribbean Airlines Ltd.

United States District Court, D. Connecticut

March 27, 2018



          Michael P. Shea, U.S.D.J.

         Plaintiff 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).

         I. Findings of Fact

         The 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”).[1]

         A. The Plaintiff's Background

         The 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[2] 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).

         The 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).

         B. The Plane Crash

         On July 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 at 33-34).

         C. The Aftermath

         Upon 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).

         In 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).

         Despite 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. Ex. 2L).

         In 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. 7I.).

         In the 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).

         The 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.).[3] 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. (Id.).

         At this 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 treatment. (Id.).

         In the 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.).

         The 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. Ex. 8K).

         With 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).

         In 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. 11I).

         Meanwhile, 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.).

         The 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).

         In the 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).

         The 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 conclusion. (Id.).

         As 2016 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).

         The 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 delayed.” (Id.).

         At 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 63-64).

         II. Conclusions of Law

         A. Warsaw and Montreal Conventions

         The 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.”).

         “The 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 357).

         The 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).[4] 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.

         An “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 ...

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