Defendant-appellee Etihad Airways recently petitioned the U.S. Court of Appeals for the Sixth Circuit for panel rehearing and rehearing en banc of Doe v. Etihad Airways, P.J.S.C.,1 a decision by a panel of that court that departed from well-established treaty precedent to hold it is not necessary for mental injuries to flow from the passenger's physical injury in order to be recoverable under the Montreal Convention (MC). The panel concluded that, once a passenger establishes that an Article 17(1) accident caused physical injury, he or she may seek recovery for any provable damages traceable to the accident, including mental injuries accompanying but not necessarily caused by physical injuries. As a result, the panel held that plaintiff in this action may seek emotional distress damages caused not only by the physical injury of a needle prick but also by the "accident" of being struck by a stray hypodermic needle left in the seatback pocket of the aircraft.
Doe is inconsistent with numerous decisions of other Federal Circuit Courts addressing Article 17 damages under both the MC and Warsaw Convention (WC). The court, for example, rejected the widely-followed Second Circuit holding in Ehrlich v. Am. Airlines, Inc.,2 which conducted an extensive analysis of the same issue under Article 17 of the WC and concluded that only mental injuries caused by physical injuries are recoverable.3 Both Ehrlich and the Eighth Circuit in In re Air Crash at Little Rock, Ark., on June 1, 1999 (Lloyd)4 recognize that to allow a physical injury, "no matter how minor or unrelated", to trigger recovery of any and all mental injuries arising from an Article 17 accident would violate "the spirit"5 of Eastern Airlines, Inc. v. Floyd6 – the seminal US Supreme Court case expressly holding that purely mental injuries are not recoverable under Article 17 of the WC. Similarly, the Eleventh and Fifth Circuits (and numerous district courts) have favorably cited to and followed Ehlrich and Lloyd in cases governed by the MC.7
Because Doe is contrary to a strong body of case law in other Circuits and could be considered as undermining the U.S. Supreme Court's views of Article 17 as set forth in Floyd, it appears unlikely that the decision will be followed outside the Sixth Circuit. The panel's reasoning, including that the MC is intended to favor passengers, does not validate its incongruous views and digression from treaty precedent. Rehearing is a possibility and, if denied, a petition for certiorari review may be filed with the U.S. Supreme Court.