it's one six dash one zero four two jane doe at all versus at a hot airways p j s c oral argument fifteen minutes per side mr schwartz for the damages do not arise from the accident but rather from the bodily injury she sustained as a result of the needle stick puncture the district court's opinion states that the fans in argues in the court agrees th mental distress damages were not caused by her physical injury this is contrary to the evidence and it's contrary to the facts in this case i'm interested that you even start out that way in in let me tell you why there are certainly occasions when there could be an accident a plane crash and maybe the only injury maybe there isn't so you can separate those two but here i thought your position all along was there was there were two things the accident was the needle prick the needle p was the accident you start out this morning saying the needle the injuries came out of the needle prick not not the accident there are two different things here that the current you're correct your honor under under article seventeen there are three bodily injury and a cast to happen in the course of of in this case onboard the aircraft the last threshold question is not at issue but we have always maintained what your position is there is a separate act in and bodily injury or they want  o there's separate your honor the accident the accident is the unusual or it's unexpected event as defined in sachs and the hussein case and it is and it compromises me what the accident injury your honor if it if it caused if it caused the needle to be left in that seat back pocket then it constitutes an unusual and unexpected event as in as in sa also as an hussein which says in a mission can constitute an accident and as in hussein the court the supreme court stated that the omission the lack of the failure by olympic airways to receive the dr hansen it was the accident so the accident has its own unique usage under article seventeen and the accident again just needs to be an event external to the passenger an unexpected happening or occurrence it's very broadly construed again hussein the olympic airways versus hussein case the court expressly says that it could be  broadly interpreted so then we turn to the model the entry in this is what makes this case rather unique because we don't have as your honor pointed out we don't have a typical airplane crash where we can say that the mental damages are from the crash itself versus the physical injuries that the plaintiff sustained but what we have here are the physical injuries and those mental damages that flow from those the injury occurring by virtue in the new it would be the hussein case it would be it would be sacks and sacks the court dealt with the issue of the and i can i can give the court the cite it's for seventy us three ninety two an accidents is an unusual or unexpected event external to the passengers in that case the court looked at the passengers internal reaction to the usual normal or expected operation of the aircraft and that situation th plaintiff had in your problem during a normal i think it was at the center and the court held that there was no recovery because there was nothing unusual or unexpected regarding that  constitute an unusual or unexpected event the montreal convention is again a liberally interpreted treaty but the way the the negligent standard you know this is all just generalities  t my question is you have an a case that says something you can the not cleaning an airplane is an accident saxon saxon hussein you're on and what was the the event in the case that you're  in the in the hussein hussein case your honor the event was the failure to receipt mr hussein in a valuable empty seat this goes back to an airlines allowed smoking on the aircraft and they said that was an accident and they said that was an accident because there were seats they were seats available other seats available but i want to counsel i guess i thought the the what the court ruled against you on below was that not that there was an accident and th t the accident didn't cause a bodily injury but that her her mental distress damages which is what we're mostly fighting about here i thought did not flow from the bo injury correct me if that's the wrong decision below but that was what i thought we were mostly arguing about that's no that appears to be the i mean as i understand it i've thought your theory would be the accident cause the bodily injury the bodily injury causes the mental damages and they want to say no no the mental injury is soley from the accident and therefore you don't get the connection you know it's like a plane that doesn't crash correct your honor and again the where the where the court where the district court we believe conflated those those issues and again at seattle and it's brief they use the phrase nature of the accident so any out itself makes the argument that the nature of the accident not the injury caused misses those mental damages we submit that given this unique factual circumstance the needle stick itself that those those mental injuries don't flow from the accident which is the unexpected or unusual event of any odd failing to clean its aircraft but flow from the needle stick puncture itself it's an immediate it's visceral it's certainly is a bodily injury there was blood there's evidence in the record that there was that was there was a blood as a result of the puncture of the puncture mrs doe incurred medical treatment damages you started out and just before we diverted on to the accident i was i heard you say about that these were caused by and it sounded like you were accepting standard causation as the standard whereas article seventeen says sustained in case of death or bodily injury are you agreeing that you need direct causation from the accident or is in case of a different a different wording a different standard i think we would agree with we would agree with what the court in the second circuit court of appeals and ehrlich said and supported by the amicus brief that was submitted by the u s government and submitted and made part of that decision that the mental injuries that flow from or caused by i think those terms are fairly synonymous flow from were caused by the bodily injury are compensable under the montreal treaty the decisions that the court cited below that district court below the jack decision jack a versus jack as well as the case in little rock and ray little rock arkansas while personally a they are more of the restrictive approach this injury falls within the realm of that of that causation in other words the needle stick injury caused both the mental anguish the shock humiliation as well as the fear of contracting h i those cases that you just mentioned they were under the earlier convention the worst convention weren't they they were on so and the question of course is is where do we go what is montreal say about that and while the second circuit didn't have that directly in front of it in erlich it is a very a very considered well considered opinion and stated that there's really not a change or no change in the in the causation standard there with regard to the law of damages in this case i would like to state that we think that while michigan likely does provide the damage the law regarding damages under six circuit precedent specifically in pickle the this case which is not a diversity case it's under the twenty eight u s c thirteen thirty one treaty obligation the united states law of damages as far as compensation do not exclude or do not directly conflict with nicole i see my time is almost up if the court has any questions you know when you're listening to their argument could you go ahead theory and then when you come back tell me where you are you anywhere that the failure to clean the airplane is an accident o morning your honour's my name's andrew harris and i represent that he had good to be back here it's been a long time since i was here listening to mr swartz's argument tom he brings up a number of cases that i am somewhat familiar with the deal the hussein case the bickle case and with respect to the issue of an accident here i think when you look to the cases of in re little rock longo case the second circuit decision in erlick you see where the court makes the distinction between you have what is the accident what is the bodily injury and what flows from it and what the court here looked at is you have a needle you have the needle stick case here and that causes a bodily injury then you then he separates it out as these courts did to see what is the mental anguish that flows from it and they said that the needle in the in the bodily injury case here that you don't get the mental flowing from the nature of the accident here the needle stick because that's purely mental anguish damages here you get the physical pain the suffering things and naturally flow from the bottle the injury itself for example if you had in this case if the there's the accident which has to cause a bodily injury you say the accident here is the the incident involving the needle stick it was the unusual unexpected event then under your theory are the  needle in the seat back pocket so you agree the failure to connect failing to clean was what was one of the causal links in the chain of causation of the stick was the accident well that's what i'm saying then and then at the end of the and then at the end when she reaches  there was a screw in the seat back pocket and what's and was struck by it ok the the mental and the mental anguish down she would recover would be the physical pain and suffering anything associate with a regular just being stuck by the s what what difference is there between the accident and the bodily injury they will all seem to be the needle pretty well but it's the needle prick itself but it's the nature of the event that caused the injury here that she's claiming if she if she just being pricked by the needle doesn't arise out of just being stuck by the needle but if the accident so you're saying well if she was struck by a screw she wouldn't have had this fear but she was struck by a needle but the needle was what was there that was the thing that happened right i mean it's you know we were making up all sorts of analogies that the overhead bin breaks and something falls out and if it hits your arm i'm just hurt if it hits my eye and i fear losing  over had been opening up and hitting you is the accident and then the bodily injury is that your eye is damage that damage chain but then you fear for a year that the docs say i may have to take the eye out ok well that's my analogy here but in that doesn't it flowed or it is in case the the montreal convention term is in case so doesn't flow naturally from here just like the fear does well in that situation when you have you have  the itself it's not it's not a you have the fear of that you may end up losing your eye but that fear directly flows from the person the injury itself or in this case here the needle stick it so it's more of a morpheus concept that and under local law here below and is we to maintain here local damage law would be michigan damage law and under michigan damage law you can't recover for fear of the contracting aids or contagion unless you show exposure as something that should be before the trial court that's not what the judge here ruled on while he didn't reach the issue but the but is a legal issue it is a legal issue under her men and even him because this is an alternate theory not but in of damages under local law were presented but the court never reached that issue but look at the one needle stick case that we don't have under the old warsaw convention and you have the the tower case the tower of the old tower airline yeah exactly we all remembered some these old her lines in that case there the court found this a very similar analysis one that reached with respect to the warsaw convention the court did not find that there was a bodily injury but then somebody else versus tower  i we can we can look i'm sorry we can look it up but would you agree that the montreal convention terminology and language is different from the warsaw convention and that the limits a liability but the principles of liability remain the same effect the issue of bodily injury was debated during the montreal conference and some people want to make specific recognition to mental injury that you can recover it some people want to call it personal even under the warsaw convention you could recover for emotional damages caused by physical injuries from a plane crash but not for emotional damages from the plane crash itself and that's the distinction you're trying to make the nature of the the bodily injury is different if you're pricked by a screw than if you're pricked by a needle the physical injury is love than it is what it is it's a physical fact that it's a syringe which has contained blood and so if you call that the bodily injury then the emotional injury follows from it i think i don't i mean it's not just that your skin has been invaded by you know something no but the thing is in the in that case it is it does go back to the when you analogize those other cases of an accident it goes back to the nature of the accident and that's what it's not the fact that she was struck by a syringe it's because of her fear contracting it was because of the well because the nature of the event causing the bodily injury accident it's the physical reality of the accident of well the thing is all the of it you know but the thing is here that you know superficially i think it does make you make a very good point and does that is appealing but when you dig down to it that when you're looking at the issue here yes it was a needle stick but really it's that it's what flows from bodily injury is the the pain itself what's generally flow some such a thing the fact it's a needle stick it's relates the nature of the event it's the fact that she was just struck by a needle prick itself is child versus tower that's why was it flipped around and but again but see that's where i come back to even we get if we get past the montreal convention argument i do go back to under zimmerman and even the what is the local law political here and that's where i think the case which while the court below did not reach that issue it is a legal issue is what damages are recoverable plaintiffs argue that you can look to federal common law for damages that's been rejected by was rejected by the supreme court in circle men and it made very clear that the court's not going to vote with federal common law of damages under the montreal convention the second circuit rejected the exact same argument as well after all in the thank you i'd like to first address judge mckeague your question as to a reference in the in any of my briefing in this court as to whether regarding the cleaning of the aircraft the omission the failure to inspect the seat back pocket it's not directly stated in my briefing however it is stated in the complaint of paragraph twenty four and we specifically wrench mention a twenty four a when defend the and failed to clean the both the fear of contracting hiv as an element of mental damages as well as the ordinary shock mortification loss of ordinarily ordinary people and that mean that case i thought was in a sense favorable to you in the sense that they actually got got to trial which is you're not getting to hear and i didn't dig into that case did was there any medical activity there at all that is as opposed to here where you had a doctor's care and doctor's bills and and so on or was she just speculating generically she was spared i believe there was one incidence of testing that mrs rothschild underwent and the court there did you recognize unlike district court blow that the needle stick was that the needle stick itself was the bodily injury and interesting enough the rothchild case which is again a case under the warsaw convention you know stated specifically cited to the warsaw conventions favor billet towards the airlines as limiting the recovery under there under that under that international treaty this case obviously is seized under the montreal convention i'd like to address my opposing counsel's statement regarding the accident itself and that definition he states that the accident really reaching into the seat back and then admits that the bodily injury was the needle stick we submit that it clearly was not that the fact that the needles the needle was there was the unusual and unexpected resulted in there being prayer the needle your honor the needle i'm representing that the needle was there because of the omission of god in failing to clean the aircraft that's how the needle got to be there but that was at that's the negligence not the accident in my in my luggage balling case the latch was bad that's the negligence but isn't the accident when the luggage falls out and hits you under the under montreal has it and the montreal convention has a very unique unusual or expect to event which is called an accident in article seventeen and there is a bodily injury and taking place on board the aircraft or disembarking or parking there is recovery up to one hundred thirteen thousand special drawing