Illinois Federal Court First To Follow Sixth Circuit's Opinion In Doe v. Etihad, Holding That Emotional Injuries Need Only Be Accompanied By Bodily Injury

• Published date: 16 May 2022
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Personal Injury
• Law Firm: Schnader Harrison Segal & Lewis LLP
• Author: Mr Barry Alexander

In Oshana v. Aer Lingus Limited, the plaintiff alleged that while she was seated on the toilet during a flight from Chicago to Dublin, a crew member told her to return to her seat immediately. According to the plaintiff, before she had time to pull her pants up, the crew member unlocked the lavatory door from the outside, grabbed her, and pushed her into her seat. She claimed physical pain from hitting the armrest when the flight attendants threw her into the seat, and emotional distress from "having her genitals exposed in front of others." Aer Lingus countered that the plaintiff's account was a fabrication, and that she was dressed and "fixing her trousers" when the crew member unlocked the door.

Before getting to the main course, the district court disposed of a few appetizer issues. First, the court precluded Aer Lingus from introducing testimony that the plaintiff and her mother previously were escorted from a concert for using counterfeit or stolen tickets, which led her to get a prescription for anxiety. The plaintiff agreed to permit testimony about preexisting anxiety issues, and general testimony about an event in 2017 that led to her anxiety, but objected to any evidence detailing the underlying incident. The court agreed, holding the evidence/testimony regarding the counterfeit tickets inadmissible on the basis that Aer Lingus was using it to show a propensity for dishonesty.

Second, the court limited Aer Lingus' ability to refute the plaintiff's factual allegations by pointing to lack of any evidence or testimony from another passenger, or any doctor other than the plaintiff's expert. The court held that Aer Lingus could argue generally as to the insufficiency of the plaintiff's evidence. It could not argue, however, that the lack of any photographs or testimony from other passengers of such an extraordinary event evidenced that it did not happen as the plaintiff alleged. Aer Lingus similarly could argue as to the lack of medical evidence but could not argue that the lack of testimony from any treating physician indicated that the plaintiff was lying about her injuries.

Getting now to the main course, Aer Lingus argued that the plaintiff (1) could not establish a "bodily injury" as required under Article 17 of the Montreal Convention, and (2) could recover for emotional distress only to the extent it was caused by a bodily injury. Until the Sixth Circuit's decision in Doe v. Etihad, few questioned that the Montreal Convention allowed recovery...