FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANTHONY R. TWARDOWSKI, an 

individual,

Plaintiff-Appellant, No. 06-16726

v.  D.C. No.

AMERICAN AIRLINES, INC.; AMERICA CV-05-00237-VRW

WEST AIRLINES, INC.,

Defendants-Appellees. 

MYRA GAIL KASTE; KEITH KASTE; 

KELVIN KASTE; KENNETH KASTE;

KIM GEORING; KAY KOHRER, No. 06-16730

Plaintiffs-Appellants, D.C. Nos.  v. CV-05-00381-VRW

NORTHWEST AIRLINES; KLM ROYAL 04-01606-VRW

DUTCH AIRLINES,

Defendants-Appellees. 

9657
DEBRA MILLER; MICHAEL DOBLER, 

Plaintiffs-Appellants,

and

ERNEST-WILLIAM REITSCHEL;

MARSHA DABULIS,

Plaintiffs,

v. No. 06-16746

CONTINENTAL D.C. Nos. AIRLINES, INC.; AIR 

FRANCE, a French corporation, CV-02-01693-VRW

Defendants-Appellees, 04-01606-VRW

and

THE BOEING COMPANY; AMERICAN

AIRLINES, INC.; NORTHWEST

AIRLINES, INC.; SPIRIT AIRLINES,

INC; DELTA AIR LINES, INC,

Defendants. 

DANIEL WYLIE, 

Plaintiff-Appellant,

v.

AMERICAN AIRLINES, INC., No. 06-16749

Defendant-Appellee,  D.C. No.

and CV-02-02997-VRW

THE BOEING COMPANY; RECARAO

AIRCRAFT SEATING; WEBER

AIRCRAFT LP,

Defendants. 

9658 TWARDOWSKI v. AMERICAN AIRLINES
ALAN REINING, 

Plaintiff-Appellant,

v.

No. 06-16751

LUFTHANSA AIRLINES,

Defendant-Appellee,  D.C. No.

CV-03-00344-VRW

and

AIRBUS INDUSTRIE, GIE,

Defendant. 

MICHAEL WILLIAMS, individually as 

personal representative and as

successor in interest to the Estate

of Robert Williams, deceased;

MARK WILLIAMS, individually, and

as successor in interest to the

Estate of Robert Williams, No. 06-16752

Plaintiffs-Appellants,  D.C. No.

v. CV-03-02181-VRW

AMERICAN AIRLINES, INC.,

Defendant-Appellee,

and

THE BOEING COMPANY,

Defendant. 

TWARDOWSKI v. AMERICAN AIRLINES 9659
YESMIN A. CANTERBURY; SCOTT 

CANTERBURY,

No. 06-16767 Plaintiffs-Appellants,  D.C. No. v.

CV-04-04872-VRW

US AIRWAYS,

Defendant-Appellee. 

SHERRI RAHIM; JAVAID RAHIM, 

Plaintiffs-Appellants,

v.

No. 06-16768

CONTINENTAL AIRLINES, INC.,

Defendant-Appellee,  D.C. No.

CV-04-04870-VRW

and

THE BOEING COMPANY,

Defendant. 

9660 TWARDOWSKI v. AMERICAN AIRLINES
FRANK S. KLONOSKI; SYDNE E. 

KLONOSKI,

Plaintiffs-Appellants,

v.

BRITISH AIRWAYS, a corporation,

Defendant-Appellee,

UNITED AIRLINES, INC, a No. 06-16771

corporation,

Defendant-Appellee, D.C. Nos. 

CV-05-02476-VRW

and 04-01606-VRW

AUSTRIAN AIRLINES GROUP, a

corporation; TYROLEAN AIRWAYS, a

corporation,

Defendants,

DOE SEAT MANUFACTURER; DELTA

AIR LINES, INC,

Defendants. 

DIXIE WEBB; DAVID WEBB, 

Plaintiffs-Appellants,

v.

AMERICAN AIRLINES; SINGAPORE No. 06-16773

AIRLINES LIMITED, a corporation,  D.C. No.

Defendants-Appellees, CV-05-02608-VRW

and

DOE SEAT MANUFACTURER,

Defendant. 

TWARDOWSKI v. AMERICAN AIRLINES 9661
BERNARDO A. CONTE; LIDIA CONTE, 

No. 06-16776 Plaintiffs-Appellants,

D.C. Nos. v. 

CV-05-01320-VRW

BRITISH AIRWAYS, PLC, 04-1606 VRW

Defendant-Appellee. 

JAN LEENDERS, 

Plaintiff-Appellant, No. 06-16777

v. D.C. Nos. 

KLM ROYAL DUTCH AIRLINES; CV-05-01790-VRW

CONTINENTAL AIRLINES INC., 04-1606 VRW

Defendants-Appellees. 

WILLIAM HERBERT SMITH, 

Plaintiff-Appellant, No. 06-16782

v. D.C. Nos. 

UNITED AIRLINES INC., a CV-05-02748-VRW

corporation, 04-1606-VRW

Defendant-Appellee. 

RONALD GARDNER; LUANNE 

GARDNER,

Plaintiffs-Appellants, No. 06-16783

v.  D.C. No.

VARIG; CONTINENTAL AIRLINES, CV-05-01131-VRW

INC.; DOE SEAT MANUFACTURER,

Defendants-Appellees. 

9662 TWARDOWSKI v. AMERICAN AIRLINES
RICHARD STEIN; CHARLOTTE STEIN, 

Plaintiffs-Appellants,

v. No. 06-16786

M  D.C. No. IAMI AIR CHARTERS; THE BOEING

COMPANY; MIAMI AIR CV-05-00369-VRW

INTERNATIONAL, INC.,

Defendants-Appellees. 

TAUFIK RIDANI; JANA FAWN MILLS, 

Plaintiffs-Appellants,

v.

No. 06-16788

KLM ROYAL DUTCH AIRLINES,

Defendant-Appellee, D.C. Nos. 

CV-04-01092-VRW

and 04-01606-VRW

THE BOEING COMPANY; NORTHWEST

AIRLINES, INC.,

Defendants. 

CHARLES COOLURIS, 

Plaintiff-Appellant,

v.

No. 06-16792

UNITED AIRLINES, INC; UAL

D.C. Nos. CORPORATION, 

Defendants-Appellees, CV-03-03637-VRW

04-1606-VRW

and

BOEING COMPANY,

Defendant. 

TWARDOWSKI v. AMERICAN AIRLINES 9663
MADHAVI PARVATHANENI, 

individually, as personal

representative, and as successor in

interest to the Estate of Srinivas

Samineni, deceased, and as

Guardian Ad Litem for Aneesh V. No. 06-16797 Samineni, a minor,

Plaintiff-Appellant, D.C. Nos. 

CV-03-03842-VRW

v. 04-1606-VRW

SINGAPORE AIRLINES, a corporation,

Defendant-Appellee,

and

INDIAN AIRLINES,

Defendant. 

EVELYN PLOTKIN, 

Plaintiff-Appellant,

v.

BRITISH AIRWAYS PLC, a No. 06-16801

corporation; BOEING COMPANY, D.C. Nos.  Defendants-Appellees, CV-03-03242-VRW

and 04-1606-VRW

FLYING SERVICE ENGINEERING AND

EQUIPMENT, LTD.,

Defendant. 

9664 TWARDOWSKI v. AMERICAN AIRLINES
CHRISTINE BRYNE, 

Plaintiff-Appellant,

v.

UNITED AIRLINES, INC; UAL No. 06-16803

CORPORATION,  D.C. No.

Defendants-Appellees, CV-04-01022-VRW

and

THE BOEING COMPANY,

Defendant. 

MARK WOODS; LAURA SMITH, 

Plaintiffs-Appellants,

No. 06-16804

v.  D.C. No.

AIR NEW ZEALAND; DOE SEAT CV-05-01733-VRW

MANUFACTURER,

Defendants-Appellees. 

RICHARD JAFFE; ELLEN JAFFE, 

Plaintiffs-Appellants,

No. 06-16805

v.  D.C. No.

EL AL ISRAEL AIRLINES, LIMITED; CV-04-01807-VRW

AMERICAN AIRLINES, INC.,

Defendants-Appellees. 

TWARDOWSKI v. AMERICAN AIRLINES 9665
MARSHA SHUMAKER, individually 

and as Guardian Ad Litem for

plaintiffs Ryan Shumaker and

Katie Shumaker; RYAN SHUMAKER,

a minor; KATIE SHUMAKER, a No. 06-16831

minor,  D.C. No. Plaintiffs-Appellants, CV-04-04322-VRW

v.

UAL CORPORATION; UNITED AIR

LINES, INC.; UNITED AIRLINES INC,

Defendants-Appellees. 

JAMES C. TEPE, individually, and 

as personal representative and

executor of the Estate of

Rosemary Tepe, Deceased; MARY

THERESE HANKNER; PATRICIA

KREILING; SUSANNE TEPE; PETER

TEPE; JEAN TOLBERT; JEAN

WURTENBERGER; LAWRENCE TEPE;

ANNE TEPE; MARYLIN SEASTROM; No. 06-16832

JEROME A. TEPE; MATTHEW TEPE,  D.C. No. Plaintiffs-Appellants, CV-04-04527-VRW

v.

AIR NEW ZEALAND; DELTA

AIRLINES; DELTA AIRLINES INC,

Defendants-Appellees,

and

THE BOEING COMPANY,

Defendant. 

9666 TWARDOWSKI v. AMERICAN AIRLINES
RONALD SLOSKY, 

Plaintiff-Appellant, No. 06-16836

v.  D.C. No.

ALASKA AIRLINES, INC., CV-04-00487-VRW

Defendant-Appellee. 

JANICE SCHMIDT, 

Plaintiff-Appellant, No. 06-16837

v.  D.C. No.

CONTINENTAL AIRLINES, INC., CV-03-05538-VRW

Defendant-Appellee. 

JOSEPH J. LABADIA, 

Plaintiff-Appellant, No. 06-16855

v.  D.C. No.

VIRGIN ATLANTIC AIRWAYS, LTD., CV-05-02952-VRW

Defendant-Appellee. 

KAMIL MATYSKA, 

Plaintiff-Appellant,

No. 06-16860

v.

D.C. Nos.

KLM ROYAL DUTCH AIRLINES; 

CV-03-04102-VRW

NORTHWEST AIRLINES, INC.; THE CV-04-01606-VRW

BOEING COMPANY,

Defendants-Appellees. 

TWARDOWSKI v. AMERICAN AIRLINES 9667
WILSON OLIVEIRA; PAULA SEIXAS, 

Plaintiffs-Appellants, No. 06-16863

v. D.C. Nos. 

UNITED AIR LINES, INC.; UAL CV-03-04830-VRW

CORPORATION; BOEING COMPANY, CV-04-01606-VRW

Defendants-Appellees. 

TAPA BISWAS; SUSHMITA ROY, 

Plaintiffs-Appellants, No. 06-16985

v.  D.C. No.

BRITISH AIRWAYS, CV-05-01895-VRW

Defendant-Appellee. 

CYNTHIA RIALS, 

Plaintiff-Appellant,

v. No. 06-16987

UNITED  D.C. No. AIRLINES; JAPAN AIRLINES;

DOE SEAT MANUFACTURER; UNITED CV-05-02493-VRW

AIRLINES, INC,

Defendants-Appellees. 

9668 TWARDOWSKI v. AMERICAN AIRLINES
FRANK S. KLONOSKI; SYDNE E. 

KLONOSKI,

Plaintiffs-Appellants,

v. No. 06-17019

DELTA D.C. Nos. AIRLINES, INC.; BRITISH 

AIRWAYS; AUSTRIAN AIRLINES CV-05-02476-VRW

GROUP; TYROLEAN AIRWAYS; 04-1606-VRW

UNITED AIRLINES, INC; DOE SEAT

MANUFACTURER,

Defendants-Appellees. 

SHAWN HARRIS, 

Plaintiff-Appellant, No. 06-17027

v.  D.C. No.

ATA AIRLINES, INC., a corporation, CV-04-01461-VRW

Defendant-Appellee. 

CHANNA VAJJALA PRASAD, 

Plaintiff-Appellant,

No. 06-17028

v.  D.C. No.

ATA AIRLINES INC.; LUFTHANSA CV-04-00875-VRW

GERMAN AIRLINES,

Defendants-Appellees. 

TWARDOWSKI v. AMERICAN AIRLINES 9669
JULIE BRACKENBURY; CHRISTOPHER 

BRACKENBURY, No. 06-17044

Plaintiffs-Appellants, D.C. No.  v. CV-05-03873-VRW

VIRGIN ATLANTIC AIRWAYS, LTD., OPINION

Defendant-Appellee. 

Appeal from the United States District Court

for the Northern District of California

Vaughn R. Walker, District Judge, Presiding

Argued and Submitted

May 12, 2008—San Francisco, California

Filed July 30, 2008

Before: Betty B. Fletcher and Pamela Ann Rymer,

Circuit Judges, and Kevin Thomas Duffy,* District Judge.

Per Curiam Opinion

*The Honorable Kevin Thomas Duffy, Senior United States District

Judge for the Southern District of New York, sitting by designation. 

9670 TWARDOWSKI v. AMERICAN AIRLINES
COUNSEL

Clay Robbins, Magana Cathcart & McCarthy, Los Angeles,

California (argued); Randy Baker, Seattle, Washington, for

the plaintiffs-appellants. 

William Boyce, Fulbright & Jaworski, Houston, Texas; Richard Grotch, Coddington, Hicks & Danforth, Redwood City,

California; Samantha D. Hilton, Kenney & Markowitz, San

Francisco, California; Charles L. Coleman, Holland &

Knight, San Francisco, California; Clem C. Trischler, Pietragallo, Bosick & Gordon, Pittsburgh, Pennsylvania (argued);

Sara A. Simmons, Law Offices of Sara A. Simmons, San

Francisco, California; Kevin R. Sutherland, Clyde & Co. US,

Woodland Hills, California; Diane Westwood Wilson, New

York, New York; Jeffrey A. Worthe, Santa Ana, California;

Rod D. Margo, San Francisco, California (argued), for the

defendants-appellees.

OPINION

PER CURIAM: 

In these consolidated appeals,1 airline passengers or their

1The cases were transferred to the Honorable Vaughn R. Walker in the

Northern District of California pursuant to order of the Judicial Panel on

Multidistrict Litigation under 28 U.S.C. § 1407, MDL Docket No. 04-

01606. In re Deep Vein Thrombosis Litigation, 323 F. Supp. 2d 1378

(J.P.M.L. 2004). The district court’s judgment is appealed under the lead

case of Miller v. Continental Airlines, Inc. (No. 06-16746). We ordered

the cases consolidated for purposes of appeal. Air New Zealand, Ltd.,

Israel Airlines, Ltd., Japan Airlines, KLM Royal Dutch Airlines, Luf9672 TWARDOWSKI v. AMERICAN AIRLINES
survivors appeal from summary judgment in favor of Continental Airlines and a number of other air carriers on their

claim for damages for failure to warn of the risk of Deep Vein

Thrombosis (DVT) on international flights. They argue that

the airlines’ refusal of requests to warn was an unexpected

event and thus, an “accident” under Article 17 of the Warsaw

Convention, because before their flights, the airlines’ trade

organization, the English House of Lords, and airline medical

officers had urged airlines to warn of DVT risks, and the airlines themselves had publicly represented that preventing passenger injury was a priority. However, we have already held

that developing DVT in-flight is not an “accident,” Rodriquez

v. Ansett Australia, Ltd., 383 F.3d 914, 917 (9th Cir. 2004),

and that failing to warn about its risk is not an “event” for

purpose of liability for an “accident” under Article 17, Caman

v. Continental Airlines, Inc., 455 F.3d 1087, 1092 (9th Cir.

2006). Neither requests by public agencies, nor the airlines’

public commitment to safety, converts the failure to warn

about DVT into an event or accident; the gravamen remains,

at its core, a failure to warn. If there is no liability for failure

to warn, there is none for failure to warn effectively. Accordingly, we affirm. 

I

Between 2001 and 2004, passengers or their decedents purchased a plane ticket on an air carrier for an international

flight during which they allegedly incurred injuries and, in

five cases, death, which they attribute to DVT. Deep vein

thrombosis is a medical condition in which a blood clot forms

in the deep veins of the legs. Before their flights, the Internathansa German Airlines, and Singapore Airlines, Ltd. separately filed a

joint brief, as did Yesmin A. Canterbury in her case against US Airways.

Unless necessary for context, we refer to Miller and the other appellants

as “passengers,” and to Continental and the other appellees as “airlines”

or “air carriers.” 

TWARDOWSKI v. AMERICAN AIRLINES 9673
tional Air Transport Association (IATA), the English House

of Lords, and airlines’ own medical personnel had suggested

that airlines warn passengers about DVT. For example, in

December 2000, the British House of Lords published a report

suggesting that airlines should make DVT information available through “high profile pre- and in-flight preventive

advice” as well as “active encouragement of in-flight mobility

and preventive leg exercises.” In a magazine article, the chief

medical officer of United Airlines, Dr. Gary Kohn, said that

United takes extra safety steps and gives passengers tips on

avoiding DVT. And in February 2001, the IATA issued a

press release that stated, among other things, at the present

time, there is no conclusive medical evidence supporting a

connection of DVT with long distance travel; air carriers

should warn passengers of the risk of DVT at the time of

making reservations; and on board, airlines should encourage

passengers to drink sufficient fluids, wear loose fitting

clothes, avoid smoking and alcoholic beverages, and perform

physical exercises in their seats. Air carriers generally put

information about DVT on their websites and in inflight magazines. Air carriers also publically state that preventing passenger injury is a priority. 

Air carriers moved for summary judgment, which the district court granted. The court concluded that Caman mostly

controlled, but that, to the extent passengers maintained that

the airlines elected not to give warnings (or effective warnings), those decisions would be too remote from the embarking, disembarking, and on-board process for injury to be

compensable under Article 17. The court allowed discovery

into industry practice and individual airline policy, but

rejected passengers’ Fed. R. Civ. P. 56(f) request for additional discovery. 

Passengers timely appealed. 

II

The United States is party to the Convention for the Unification of Certain Rules Relating to International Transporta9674 TWARDOWSKI v. AMERICAN AIRLINES
tion by Air, commonly known as the “Warsaw Convention.”

Oct. 12, 1929, 49 Stat. 3000, T.S. No. 876 (1934). The Convention provides uniformity with respect to documentation

and certain procedural matters, and imposes limitations on liability. El Al Israel Airlines, Ltd. v. Tseng, 525 U.S. 155, 169

(1999); In re Aircrash in Bali, Indonesia on April 22, 1974,

684 F.2d 1301, 1307 (9th Cir. 1982). The “recovery for a personal injury suffered on board an aircraft or in the course of

any of the operations of embarking or disembarking [an aircraft], if not allowed under the Convention, is not available at

all.” Tseng, 525 U.S. at 161 (quotation and citation omitted).

[1] Article 17 governs injury to persons suffered during

international air travel and provides:

The carrier shall be liable for damage sustained in

the event of the death or wounding of a passenger or

any other bodily injury suffered by a passenger, if

the accident which caused the damage so sustained

took place on board the aircraft or in the course of

any of the operations of embarking or disembarking.

Warsaw Convention, Art. 17. 

[2] The Convention itself does not define “accident,” but

the Supreme Court did in Air France v. Saks, 470 U.S. 392

(1985). An “accident” is an “unexpected or unusual event or

happening that is external to the passenger.” Id. at 405.

Although “[t]his definition should be flexibly applied after

assessment of all the circumstances surrounding a passenger’s

injuries,” id., “when the injury indisputably results from the

passenger’s own internal reaction to the usual, normal, and

expected operation of the aircraft, it has not been caused by

an accident, and Article 17 . . . cannot apply,” id. at 406. In

turn, the Court focused on the meaning of “event” in Olympic

Airways v. Husain, 540 U.S. 644 (2004). There, a passenger

and his wife were seated near the smoking section. The passenger had a history of anaphylactic reactions to smoke and

TWARDOWSKI v. AMERICAN AIRLINES 9675
asked a flight attendant to be moved away from it. The crew

refused the request, and the passenger died in an apparent

reaction to the smoke in flight. Even though the conduct

amounted to inaction, the Court concluded that it could nevertheless be an “event” because “[t]he rejection of an explicit

request for assistance would be an ‘event’ or ‘happening’

under the ordinary and usual definitions of these terms.” Id.

at 655. 

[3] Based largely on this rationale, passengers here contend

that it was equally unexpected and unusual for air carriers not

to warn effectively about DVT because the airlines had been

“requested” to do so by IATA, the English House of Lords,

and airline doctors. However, an airline’s failure to warn a

passenger about DVT is not an “event,” and thus not an Article 17 “accident.” Caman, 455 F.3d at 1092. It does not

become one simply because public agencies have recommended, or “requested,” warnings. 

Other courts, including those of signatory nations whose

views are entitled to weight, are in accord. See, e.g., Blansett

v. Continental Airlines, Inc., 379 F.3d 177, 180 (5th Cir.

2004) (acknowledging that the IATA has recommended that

airlines implement a schedule of instructions on the risks of

DVT, and holding that Continental’s failure to warn of DVT

was not an “unusual or unexpected event” and therefore not

a qualifying “accident”); Povey v. Qantas Airways Ltd.,

(2005) 223 C.L.R. 189 (Austl.) (holding that the failure to

warn of DVT is not an actionable “accident” under the Convention); Deep Vein Thrombosis and Air Travel Group Litig.,

[2005] UKHL 72, [2006] 1 A.C. 495 (U.K.) (same). Nor does

the Federal Aviation Administration require warnings on

DVT. 

[4] Passengers’ reliance on McCaskey v. Continental Airlines, Inc., 159 F. Supp. 2d 562 (S.D. Tex. 2001), and Fulop

v. Malev Hungarian Airlines, 175 F. Supp. 2d 651 (S.D.N.Y.

2001), is misplaced. Unlike in Caman, Rodriguez, and Blan9676 TWARDOWSKI v. AMERICAN AIRLINES
sett, injuries in both these cases (as in Hussain) stemmed from

specific health-based requests for help that were unheeded by

airline crew. The passenger in Fulop had a heart attack on

board, 175 F. Supp. 2d at 664; in McCaskey, a stroke, 159 F.

Supp. 2d 568; yet in neither case did the plane divert. Generalized requests by public agencies to warn are quite different

from the particularized requests by individual passengers for

assistance, and the airline’s response to them, at issue in these

cases. Nor does our decision in Prescod v. AMR, Inc., 383

F.3d 861 (9th Cir. 2004), support passengers’ submission that

a “promise” by air carriers to make passenger safety a priority

is an “event.” There, an embarking passenger made a specific

request — that a bag with medications and a breathing device

stay with her on the flights ahead — and the airline gave its

word to honor this request. The airline then unexpectedly

seized, and delayed, the bag. We concluded that seizing the

bag was an “unusual and unexpected event” because doing so

was contrary to the airline’s specific promise, and was external to the passenger for the same reason the refusal of assistance in Husain was external to the passenger. Prescod, 383

F.3d at 868. A failure to follow through on a promise to take

care of a specific, health-related request, which was unexpected in Prescod because of the promise, does not mean that

every injury to a passenger is an unexpected “event” simply

because airlines have declared that avoiding injury to passengers is a priority. 

Just as we found it unnecessary to decide how industry

standards figure into the Article 17 analysis in Caman, it is

unnecessary to do so here. Passengers present no substantial

evidence of an industry standard with respect to warning

about the risks of DVT. 

Finally, to the extent that passengers fault the district court

for having invoked Article 17’s space and temporal limitations, it was in response to their alternative position that the

airlines “elected” or decided not to warn despite requests to

do so. However, we cannot see how it matters whether, or

TWARDOWSKI v. AMERICAN AIRLINES 9677
when, a decision not to warn was made in this case as there

was no duty to warn of DVT risks in any event. 

III

Passengers submit that regardless of how we view their

case as to others, the judgment must be reversed as to Singapore Airlines because Singapore violated its own safety policy. Passengers’ only submission in support is a newspaper

article, which is hearsay. As there is no substantial evidence

of Singapore’s policy, we need not (and do not) decide what

effect, if any, an airline’s violation of its own policies would

have on liability under Article 17. 

IV

[5] Passengers maintain that such DVT warnings as were

given through videos, magazines, and in ticket packets, failed

to notify them of the risks of DVT. This is beside the point,

given our holding in Caman that the airlines have no duty to

warn of the risks of DVT. Given no duty to warn, it follows

that there is no duty to warn in any particular way.2

V

Yesmin A. Canterbury’s argument that summary judgment

should be reversed on the ground that her declaration indicates that a US Airways flight attendant prevented her from

standing and moving around during flight, even if properly

raised in the district court, lacks merit. There was nothing

unusual or unexpected about this flight attendant’s instructions to Canterbury to remain seated, so this occurrence cannot constitute an Article 17 accident. See Witty v. Delta Air

2As the Court made clear in Saks, whether there is an “accident” for

purposes of Article 17 is different from the question whether an air carrier

has done all it can to prevent an injury that is inherent in air travel for purposes of Article 20(1). 470 U.S. at 407. 

9678 TWARDOWSKI v. AMERICAN AIRLINES
Lines, Inc., 366 F.3d 380, 385 (5th Cir. 2004) (“[A]ny warning that passengers should not stay in their seats, but should

instead move about to prevent DVT, would necessarily conflict with any federal determination that, all things considered,

passengers are safer in their seats.”). 

VI

Passengers’ argument that additional discovery would have

disclosed additional refused requests and disregarded statements establishing the necessity to warn of DVT, and that

failure to do so was part of a cover-up of DVT risk, fails for

essentially the same reasons. The district court permitted

broad discovery into the airlines’ actual practices, warnings of

the risks of DVT, and policies. Beyond this, discovery would

be unlikely to produce any probative evidence. 

AFFIRMED. 

TWARDOWSKI v. AMERICAN AIRLINES 9679