in frank fleming linda bailey who is the surviving spouse in a state representative james bailey who died following a heart attack that he suffered on a transatlantic flight from london to phoenix the district court in this case granted the medicare defendant's motion for summary judgment erroneous lee finding that there were no genuine questions of material fact as to whether mr bailey had mr bailey's injuries and subsequent death caused by an accident under the montreal us that the event itself and the accident need only be one link in the causal chain leading to the ultimate injuries and death so unlike a traditional proximate cause chait case if it is a mere link even if there are other factors contributing to the ultimate injuries and death is a compensable accident under the montreal convention this court had earlier issued an order directing the parties to address the term servant an agent as they appear in the convention i wasn't sure if the panel would like me to start with that i would be interested in why i met air as an agent short so the montreal convention is the successors convention to the warsaw treaty under warsaw the terms servants and agents did not appear at the montreal convention adopted in large part the language of the warsaw convention and made a couple substantial significant changes one was removing the requirement that an injured party establish willful misconduct on the part of the air carrier and the other had to do with  the creation of a fifth jurisdiction where a suit could be commenced it also expressed anything in the drafting history indicating that the montreal convention on had to adopt the warsaw the convention i guess judicial interpretation reading and serve and then each and certainly in the in the legislative history in the united states adopting the can vent the montreal convention there is express discussion in fact senator lugar who is the committee on foreign relations chairperson issues a report in which he states that at the convention the convention participants considered the large body of judicial precedent that has been established in the united states and the the convention intended to preserve these precedents both with respect to existing terms and also other aspects that is language not appearing in the warsaw convention in order to avoid unnecessary litigate litigation over issues already established by the courts do we know that they're talking about the agent the the employer agent language will certainly by the time he wanted a convention is adopted there's a substantial body of law concerning agents and servants those terms had been had appeared at two other international transportation conventions the guadalajara conference and the hague convention and that's the language at the international civil aviation authority organization which is the un agency responsible for the conventions on international air travel adopt for our purposes of article thirty an article fifty forty three the language from the guadalajara and the hague conventions but there's not debate or discussion at the montreal convention within the inferences the ad that would be one of the established bodies of law that would be included on trial could bichon is that my understanding your argument that's correct and those other international documents that you're referencing  now do we have a reason to believe that agent in those is broader than our common law definition of agent because it seems like you need agent to mean some means something broader than the normal common law definition here let me be clear first of all so that for the pla fs i don't think we need to be within the convention to have a compensable injury against the medicare defendant so if this is outside the scope of the montreal convention then we can proceed with the negligence claim against the medicare defendants so forget that on appeal now though what's the it's of the well it's not because the parties had agreed in the district court found the convention applied so if the i think if this court found there was not subject matter jurisdiction under the convention it would have to remain on the case to the district court for further proceedings we did originally  in state court in arizona and it was removed by the defendants to a federal court and with the convention is not applicable and you would have a legend's claim correct and we our complaint did did include allegations asserting that the matter defendants had been negligent as well as the mr bailey had suffered a compensable accident under the convention but so back to this idea though for the convention to apply you do need something broader than the common law definition of agent well i think that that for the convention to apply we would need application of the in furtherance of test which is what the majority of courts that had interpreted servant or agent had views had employed but there was no interpret ing servant or agent to do because that language didn't exist what do you mean by at the time of the montreal convention you're saying the in furtherance of tests didn't exist thought right so didn't that case like come from the earlier convention camp comes from the war second right so and that warsaw convention didn't say servant or agent no but the case law interpreted to servants and agents who were acting in further the carriers of the air carrier where you're saying that interpreted servitor agent but where did the words you're where were those words that they were interpreted so the words were the words aren't in the convention i think the word yes so the words there is at least one case the da so case in the ninth circuit refers to the restatement as a source of the meaning of servant an agent when i look back at the war started in agent cases there's not a whole lot of discussion about what in furtherance of the carriers in furtherance of the carrier's mission that that point of could then avoid the limitations of liability that appear in the convention and leaving basically circumventing the uniformity and limitations purposes of the convention so him other than the legislator i think that you indicated when you as legislator had said that the montral convention  intended to include established bodies of law interpreting the r c i convention i think then that one indication is there anything else in either the drafting history or the legislative history that would say that the definitions or the understanding of carriers including server than agents in the warsaw convention should apply in the montreal convention not in the convention history but there is a statement that was issued by the assistant secretary of state for transportation affairs mr brierly in which he says the montreal convention when talking about the scope of the reach to employees of airlines and also other existing case law mr brierly says the montreal convention preserves established la relating to other ass other aspects of the warsaw convention this comes after saying that we kept the language we largely kept a lot worse our convention language and it preserves established law relating to other aspects of the wars convention that were acceptable to avoid unnecessary litigation i'd like to move on to the question of whether there were genuine questionable trunnion issues of material fact here could i just ask so it seems that the contract  common law are typical sense of the word agent well we haven't we haven't developed the record on that so i don't think that we would be able to argue that based on the record as it is now because the district court had ruled that it was an agent under the convention i'm not sure that a part private party can contract around an international treaty but maybe that that's an issue between british airways and medicare if there were an end indemnification agreement but i don't think that it would bear directly on our suit against medicare basically saying we should read agent as in furtherance of correct well i think that's what the case law requires the court to do again i'm not sure that for mrs bailey it's it makes a meaningful difference because we do have the allegations of negligence and if this court were to find that but i think it does make a difference right because under the convention you don't have to show why ability as high as negligence that's that's absolutely correct and that's one of the major errors that we believe the district court committed in its in its ruling in this case we also believe that the record contains evidence that would allow us to satisfy what i would call the higher standard of negligence liability if we had to proceed under a common law cause of action but certainly we don't think that that air in british airways can contract their way around the provisions of the international treaty so i i do understand the parties have the language that that matter is not an agent of the air carrier but i think for purposes of the treaty it has to be treated as a an agent for the convention the district court relying primarily on the ninth circuit's deep brain from both cases treated this essentially as a failure to warn suit which it was if it was affirmatively not as the court knows the sequence of events here is that mr bailey started suffering a hear started exhibiting the signs of a heart attack shortly after takeoff and within a critical period of time when the plane was still able to divert to a location where he could have received meaningful medical treatment that both medical experts both mrs bailey's and me acknowledged would have had both given him an eight a greater likelihood of survival and also would have minimize the damage to his heart the medicare defendants failed to provide room standards of essentially was there evidence showing that the failure to divert was unreasonable based on the industry practice of when you divert for illness in the air sential question for the jury whether the can vent whether there was an accident under the convention is a jury question if there are contested questions of material fact dr can depend says that mr mr bailey would have had an increase improve chance for survival with but didn't have experience with the criteria for diversion but there was captain mez nard who was the pilot an expert in the plaintiffs who offered testimony as well and the defendants never moved to disqualify dr candy as as an inappropriate expert in this case and there is no finding by the district court that the experts themselves were were inadequate of the expert opinions were inadequate just that there was there was the district court treated this is a failure to warn case and didn't believe that there were any genuine questions of material fact so my question though are generally is there's obviously standards for when you divert an aircraft which are different than what you do in an emergency room and  given that the impact of such of a diversion on passengers and possible safety and the like and my question is whether there was any specific information showing the ad under diversion standards as opposed to medical standards which is how i read dr candy pan's testimony that the plane should have died for it sure i would point to dr mind her deposition in which he says that if he had credited the onboard physicians well both the warsaw convention and the montreal convention refer to the liability of a carrier and neither convention do they define what a carrier is in the warsaw convention however article twenty it says the carrier is not liable if he proves that he and his agents have taken all necessary measures to avoid the damage or that it was impossible for him or them to take such measures so the concept of agents was at least they're open legally in the warsaw convention now the addition of the term servants our agents that was agents was first placed the you raise the question judge friedland is whether or not we you need to interpret agent as something broader than we would here in the common law and the answer is yes  that is certainly the case and the courts have interpreted it to include independent contractors in numerous circumstances and i've got a few cases maybe i'll just cite you to one because it's a later case and if you look at that cites some other cases but what would the standard be by which a jury would have to determine whether the agency and serve in provision of the macho convention applied i don't i think that would be a matter for the court to determine not a jury your honor based on the let's put it this way i've never seen a case that had that go to the jury that the case is all the court's determined that as a matter of law that the convention applies or doesn't apply what would be the applicable standard that we would have to employ but i think the applicable standard is as is that it correctly said whether the company involved whether  two nine two seven three four it contains the treaty and the formal submission by president clinton of that treaty to the senate and it also includes an article by article analysis of the changes which is of some use  so article thirty of the montreal convention is the or is the article that contains this language about servants or agents and in this article by article examination it says that this paragraph clarify is that servants are agents may avail themselves of the same conditions and liability limitations to which the carrier is intitled under the convention ok that's very helpful if we adopt the further and standard than weighs could have been some airlines do in fact hire their own medical personnel on the ground to provide the type of services that medicare does that is that they'll have a not a doctor available that their airlines they employ directly they can call to give them additional help when they have a medical emergency so in this case they contract with medicare who provides emergency department trained documents  doctors excuse me and i appreciate you can do that why should this case not go to the jury to decide as a matter of fact whether there should be some liability the usual standard of under the issue of causation it seems those are factually based considerations for a jury if i'm not correct see what he can dissuade me ok well judge judge to have the correct question which is you have to show some standard that would call for the version of an airline in these circumstances you can just say well it's a fact question for the jury no cases all the ninth circuit cases certainly in other courts have said you need to find some industry standard but when it was a wire to whatever and then when it's a cardiology emergency then why isn't a cardiologist testimony a standard about ok the standards of care and cardiology i understand that you're trying to argue that it should be the standards for diversion of airplanes but if i understand correctly there are only really two players in this industry and it would seem like if that's the standard then by providing bad care you just create a standard by which everyone always provides bad care in this industry particular medical advice for diversion well that's what i'm from that's what i'm getting to your honor it is very difficult to issue standards as to when an airline should divert now are there are none for a reason and that reason is with all the things going on in airline is very difficult to dictate in a particular circumstance when a diversion should take place or somebody was seriously ill standards that govern diversion and there's a failure in the allegation as here is a failure to recommend diversion and that's not actionable so could there ever be liability for medicare coming out of a recommendation about whether someone needs medical treatment on airplanes well there if the question is there could be action if there's if there's if you're talking about general medical treatment but when you get to the question of  under those circumstances that could be a and e for enter a happening that would constitute an accident yes i and i would i would agree in those unique circumstances but notice what those included they included a violation of industry standards and internal policy and to make it more extreme that included the passenger being unconscious somebody recommending that that or somebody saying that he needs to have medical treatment or he's going to die and there's a diversion location in thirty minutes none of those applied in our situation the suffocation out of the supreme court so gives that example to show that inaction can be grounds for liability but it never says you need the exact facts so but you need some facts you hunter in this case mr bailey boards the plane here but say every cardiologist in the country other than the ones who work for medicare would say divert because this person needs emergency help but medicare's policy is we don't divert now is that defense to liability because me basically most of the industry all men are only recommends diversion is the pilot that makes the final decision and the pilot has to take into account a number of things but the decision to recommend aversion is based on factors in this case the facts available are that mr bailey had some chest pain bunch of facts why should that be for a jury to wrestle well it might often be but in this case unique facts here which is that mr bailey had no prior cardiac history was not any medications was not unconscious or because there's evidence of testimony all over the place here that seems to me to be the well this is a case that involves evaluating standards and to do that the they have to find they have to find some either industry standards or some internal medicare standards and if there are none which they haven't come up with any then that's that's what the just record found was grounds for finding that there was no accident and even if there were an accident your honor they still need to prove causation and in this case they would need an opinion from a doctor that the failure to divert more than likely caused mr bailey's death so i don't  the if you go in emergency department they can immediately look at you palpitate you listen to your heart take blood tests look you up to an e c g you can't do any of that on an airline in fact if you're a medical doctor you can't even speak to the passenger the passenger you can't see him you can't evaluate him all you can do is get some secondhand information about other people that examined him here or the onboard doctor said we we don't have any idea of what's going on mr bailey himself at the time when the plane was considering diverting said i don't want to divert the onboard doctors said we don't think it'll be a problem if you don't divert so you have all of these factors in this case that don't suggest any reason to revert other than mr bailey had some chest pains now of chest pains ninety percent of the time are not do not exhibit are not the result of a heart attack and that's why we've cited in the briefs that incidence of chest pain on on flights measurements involved with ninety two percent of the time do not divert but there was much more here than that is much more here than that well there's there's certainly more but but there's the more doesn't amount to enough i submit your honor to to submit to the jury without without any evidence that there is a violation of standards without any evidence that mr bailey's life would have been actually preserved if if they did divert ok and i go back and just as a practical question it seems to me that if you argued that your client was not an agent you would not have any liability under the convention so i'm confused why you're arguing that you are an agent well we believe i'm arguing not that we're i'm agent but they were subject to the convention under those tests that have been used by all the courts we've seen which is that as a practical matter why why do you want to be subject to the convention well the convention gives us the convention deals with accidents that are unusual or unexpected and doesn't deal with negligence in a medical sense and so the arguments that they would like to make about gee he was medically negligent don't apply here but they have a separate claim about that so it seems like you're increasing the ways you might be liable instead of narrowing them by arguing that you're possibly liable under this other mechanism i'm quite confused about that it just an element of a convention claim i don't know i don't personally see that there's an impediment to jurisdiction here because as i say there's lots of case law for courts to analyze  these subcontractors agents independent contractors in cases such as the cleaning crew on an airplane which is contracted out to somebody you've been viewed is subject to the convention or the case of somebody that installed the in flight entertainment system in the plane clearly not an agent in the sense of common law agent as we would put it under american law but nevertheless viewed as subject to the terms of the convention so that's why i'm a matter of time i'm happy to answer any more questions after your time we appreciate your argument unexpected just helping with that why is there anyone else you are mad because unusual or unexpected is something that would you would not you know by definition expect to have happened so here we have in the record evidence that medicare is contracted with british airways to diagram of the convention and negligence there's an overlap and and unreasonable behavior can satisfy both a traditional tort negligence standard as well as the convention but what you heard from it from mr dangerfield was why liability should be limited under article twenty one yes judge and i have to charge the jury as to what they should consider to determine whether this was the usual and unexpected what with the proper charge look like i think the charge could be that if you fail if you find that the that the that mr bailey's injuries were caused in part by an event that was accidental to him to his to his own natural reaction to the flight and that were not what you would have expected in light of the sequence of events so for example if this were the fishman case which was the child who had an earache when their cabin was depressurizing and the flight attendant quite a hot compress but then accidently poured hot water again through what i also have to instruct the jury as to whether they should or should not or may or may not consider whether there were any standards by the industry or whatever i think that could be that could be a factor in the recharger be part of the charge so i think the industry standards the norms the reasonableness all of these are part of the charge but that critical factor is whether it was a link in the cause of change in the chain of causes leading to the death i just i