The forum non conveniens inquiry is guided by a number of considerations, First, an
adequate alternative forum must be available to hear the case. Kamel, 108 F.3d at 802. If this
threshold criterion is satisfied, then the court must balance various private and public interest
factors to determine the superior venue. /d. at 803. The court has substantial flexibility in
considering the relative importance of these factors, and the forum non conveniens determination
is loft to the trial court’s sound discretion. Kamel, 108 F.3d at 802; Wilson y. Humphreys
(Cayman) Lid., 916 F.2d 1239, 1245 (7th Cir. 1990). Dismissal is proper if the balance of
conveniences suggests the chosen forum would be urmecessarily burdensome for the defendant
or the court. Piper, 454 U.S. at 256. The defendants bear the burden of persuasion as to all
elements of the forum non convenicns analysis. Pyrenee, Ltd. v. Wocom Commodities, Ltd. 984
F. Supp. 1148, 1161 (N.D. Ill, 1997).

a. Adequate Alternative Forum

The court first must determine whether there is an adequate alternative forum in which
to hear this case. Piper, 454 U.S. at 254.22. Whether there is an adequate alternative forum
for plaintiffs’ claims is a “two-part inquiry: availability and adequacy.” Kamel, 108 F.3d at 802.
A forum is “available” if “all parties are amenable to process and are within the forum’s
jurisdiction.” Jd. at 803 (citing Piper, 454 U.S. at 254.22). An alternative forum is “adequate”
when “the parties will not be deprived ofall remedies or treated unfairly.” /d. (citing Piper, 454
U.S. at 255).

Defendants contend that Austria is an “available” forum because Austrian Airlines is
amenable to process in Austria. They contend that Austria is an “adequate” forum because

courts in the United States have concluded that Austria is an adequate alternative forum, and the

13


contemplated by Federal Rule of Civil Procedure 12(f). Plaintiffs do not identify which two
affidavits they are moving to strike, but defendants’ response identifies them as the declarations
of Ursula Rumler, a purser and flight attendant for the airlines, and Thomas Heinrich, the head
of flight safety and security training for the airlines.

The Rumler and Heinrich affidavits detail the events that transpired on the airplane as
well as the adequacy of the medical equipment and flight attendant training. Although these
facts are relevant to the defendants’ liability under the Convention, they go beyond the limited
discovery this court allowed regarding the applicability of the Convention. Because no
discovery has been allowed on the liability issues, the court cannot assess liability under
summary judgment standards. See Graham v. Sauk Prairie Police Comm'n, 915 F,2d 1085, 1100
n.10 (7th Cir. 1990) (finding that the district court creed in assessing municipal liability claims
under summary judgment standards rather than under standards applicable to judgment on the
pleadings when no discovery had been allowed on the municipal liability issuc). Therefore, in
addressing defendants’ motion for summary judgment, the court did not consider the Rumler and
Heinrich affidavits that plaintiffs move to strike. Accordingly, the court denies as moot
plaintiffs’ motion to strike these affidavits.

Second, plaintiffs argue that defendants served local counsel with their reply brief on
May 24, 2002, eleven days after filing it with the court on May 13, 2002, and that they never
served the reply brief upon plaintiffs’ Ohio counsel, Plaintiffs cite to Local Rule 7.1(c) to
support their argument that the reply brief should be stricken becausc it was outside the ten-day
limitation for service of responsive pleadings. The Northern District of Illinois does not have

a Local Rule 7.1(c). Local Rule 7.1 sets forth the page limits for briefs filed with the court, but

4


Regarding the documents and records of the flight, defendants fail to show that this factor
weighs in favor of trial in Austria. Defendants furnish no details regarding the quantity of
documents located in Austria, in India, and in other locations, or regarding the feasibility of
copying and transporting documents. Also, defendant — as an international airline — is better
equipped to transport witnesses and documents than the average litigant. See Coyle v. P.T.
Garuda Indonesia, 180 F. Supp. 2d 1160, 1176 (D. Or. 2001) (weighing these factors). Thus,
this factor does not weigh in favor of dismissal.

Even considering defendants’ remaining arguments that are devoid of evidentiary
support, defendants still fail to demonstrate that the balancing of public and private interest
factors warrant dismissal under the doctrine of forum non conveniens. First, defendants fail to
show that translation costs favor trial in Austria, Again, defendants furnish no details regarding
the quantity or relevancy of documents and testimony needing translation into English. Also,
they do not argue that, if the case is tried in Austria, no documents or testimony will have to be
translated into German. Therefore, ifthe suit is brought in Austria, there still will be translation
costs involved. See Jn re Bridgestone/Firestone, Inc., 190 ¥. Supp. at 1142 (“[T]he best course
is to weigh the amount of evidence that must be translated if the trial remains in the U.S. forum
against the amount of evidence to be translated if the trial is held in a foreign forum.”). Because
defendants fail to meet their burden of persuasion on this point, this factor docs not weigh in
favor of dismissal.

Second, contrary to defendants’ assertions, the United States has an interest in the
resolution of this case because the case involves the death of one of its own citizens. Also,

Illinois is related to the casc because it was the decedent’s ultimate destination, and Article 28

17



Hungarian Airlines, 175 F. Supp. 2d 651, 664 (S.D.N.Y. 2001) (finding that an abnormal
response to a passenger’s heart attack may constitute an “accident” because it aggravated the
initial heart attack); McCaskey, 159 F. Supp. 2d at 574 (finding that lack of crew training and
responsiveness after the onset of a stroke constituted an “accident"); Husain, 116 F. Supp. 2d
at 1 136 (finding that the failure to properly maintain or administer oxygen to an ailing passenger
aboard an international flight may be considered an “accident”),; McDowell v. Continental
Airlines, 54 F. Supp. 2d 1313, 1318 (8.D. Fla. 1999) (noting that improper maintenance of a
carrier’s on-board medical equipment can be considered an “accident”), Tsevas v. Delta Air
Lines, No. 97 C 0320, 1997 WL 767278, at *4 (ND. Hl. Dec. 1, 1997) (finding that flight
attendant’s failure to move a passenger upon her request to keep her away from another
passenger’s lewd behavior was an “accident”); Cheng v. United Airlines, Inc., No. 93 C 149,
1995 WL 42157, at *4 (N.D. IIL. Jan. 31, 1995) (finding that flight attendant’s failure to provide
adequate first aid after passenger was unconscious and bleeding as a result of turbulence
constituted an “accident"); Seguritan v. Northwest Airlines, Inc., 86 A.D. 2d 658, 658 (N.Y.
App. Div. 1982) (finding that airline crew’s alleged failure to provide medical assistance after
passenger suffered a heart attack aggravated the deecdent’s condition and constituted an
“accident”).

Despite this line of case law, defendants argue that it is a “well-settled rule that an air
carrier’s conduct after a passenger suffers an injury not due to an external event is not an Article
17 ‘accident.’” (Defs.* Reply Mem. in Supp. of Mot. Summ. J. at 4.) (emphasis added).
Defendants then point to another line of cases concluding that an airline’s failurc to respond with

adequate medical assistance to an injury suffered aboard an aircraft does not constitute an

9


The burden is on the moving party to show that no genuine issues of material fact exist.
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson, 477 U.S, at 256. Once the
moving party presents a prima facie showing that it is cntitled to judgment as a matter of law,
the non-moving party may not rest upon the mere allegations or denials in its pleadings but must
set forth specific facts showing that a genuine issue for trial exists. Ce/otex, 477 U.S, at 324;
Anderson, 477 U.S, at 256-57; Schroeder v. Lufthansa German Airlines, 875 F.2d 613, 620 (7th
Cir. 1989).

Defendants argue (1) they are entitled to summary judgment because the decedent’s death
was not caused by an “accident” within the meaning of the Convention because neither
inadequate medical equipment nor negligent crew response constitutes an Article 17 accident,
and (2) plaintiffs’ complaint should be dismissed under the doctrine of forum non conveniens.
Because this court cannot decline jurisdiction under forum non conveniens unless it legitimately
has jurisdiction in the first place, the court first will address whether it has jurisdiction under the
Convention.

2. Applicability of the Convention

The Convention is an international treaty making airlines liable up to $75,000 for injuries
arising out of accidents on board airplanes or during the process of cmbarking or disembarking.
Article 17 of the Convention describes the circumstances under which an airline may be held
liable for injuries to passengers occurring in the course of international travel. Il provides that:

[t]he 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, ifthe

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.


does not have a part (c) or set forth any rules regarding a time limitation for service of responsive
pleadings. In fact, the court is unaware of any local rule containing this requirement. Further,
Federal Rule of Civil Procedure 5(b)(2) authorizes service of all papers by mail and expressly
provides that “[s]ervice by mail is complete upon mailing.” FRD. R. Crv. P. 5(b)(2). Here, as
evidenced by the Notice of Filing and Certificate of Service, the reply brief was served by
defendants’ counsel on May 13, 2002, when the papers were deposited into U.S. mail, postage
prepaid, addressed to the plaintiffs’ counsel. Therefore, defendants properly executed service
of the reply bricf on May 13, 2002. Accordingly, the court denies plaintiffs’ motion to strike
defendants’ reply brief.
B. Defendants’ motion for summary judgment

Having decided the evidentiary issues raised in plaintiffs’ motion to strike, the court now
proceeds to the defendants’ motion for summary judgment.

1. Summary judgment standard

A motion for summary judgment is proper “if the pleadings, depositions, answers to
interrogatories, and admissions on filc, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” FED. R. CIV. P. 56(c). A genuine issue of material fact exists for trial when, in
viewing the record and all reasonable inferences drawn therefrom in a light most favorable to
the non-moving party, a reasonable jury could return a verdict for the non-movant. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Smith v. Severn, 129 F.3d 419, 425 (7th Cir.

1997).


of the Convention mandates that this action be filed jn one of four permissible venues, among
which is “the court at the place of destination.” Further, defendants do not argue that forcign law
applies to any issuc in this case. In fact, most of the substantive law will be supplied by the
Convention rather than by domestic law. See Coyle, 180 F, Supp. 2d at 1177 (finding that this
factor weighed in favor of trial in the United States), Because both Austria and the United States
have legitimate interests in this case and because foreign law does not apply to any issuc in this
case, these factors do not weigh in favor of dismissal.

In sum, the court finds that the balancing of public and private interest factors weighs in
favor of retaining jurisdiction in the United States. Defendants have not met their burden of
showing that the private and public factors weigh strongly in favor of trying this case in Austria.
Trial here would not result in “oppressiveness and vexation to [defendants] as to be out of all
proportion to plaintiff's convenience.” Koster v. (American) Lumbermens Mut. Cas. Co., 330
U.S. 518, 524 (1947). Thus, defendants have not shown sufficient cause to dismiss this action
on the ground of forum non conveniens. Accordingly, the court denies defendants’ motion for
summary judgment on these grounds.

Ill. CONCLUSION

For the foregoing reasons, the court (1) denies plaintiffs’ motion to strike, and (2) denics

defendants’ motion for summary judgment.

JUL 182002 Aaa even.
James H. Alesia

United States District Judge

Date


decedent’s condition by defendants’ failure to render him adequate medical assistance. In other
words, plaintiffs argue that the relevant injury caused by an alleged “accident” was not the initial
heart attack, but the subsequent aggravated harm and death that would not have occurred had the
airlines employed adequate medical equipment and training. The unusual and unexpected event
on which plaintiffs base their claim was the failure of the flight attendants to adequately respond
to the decedent’s heart attack.

To resolve the ultimate question of liability, the court must engage in a three-step inquiry.
First, the court must decide whether, as a purcly legal matter, the failure to properly aid the
decedent after his heart attack can be considered an “accident” under the Convention. Second,
the court must decide as a factual matter whether the acts of the flight crew and the contents of
the medica! cquipment in this case constituted an unexpected or unusual event. Third, the court
must determine whether the flight crew’s medical equipment and training caused the decedent’s
death, See Husain v. Olympic Airways, 116 F. Supp. 2d 1121, 1136 (N.D. Cal. 2000)
(employing this three-step inquiry). Because this court limited discovery to the applicability of
the Warsaw Convention, jurisdiction, and venue, the court will address only the first step of the
inquiry at this point.

As a purcly legal matter, the negligent failure of the flight crew to adequatcly serve the
needs of an ailing passenger can be considered an “accident” under the Convention. See
Fishman v. Delta Air Lines, Inc., 132 F.3d 138, 142 (2d Cir. 1998) (finding that the application
of scalding water to an earache caused by change in air pressure constituted an “accident”);
Kemelman v. Delta Air Lines, Inc.,293 A.D, 2d 576, 578 (N.Y. App. Div. 2002) (finding that

an unreasonable response to a heart attack may constitute an “accident”); Fulop v, Malev


Minute Order Form (06/92)

United States District Court, Northern District of Illinois

Name of Assigned Judge i Sitting Judge if Other
or Magistrate Judge James H. Alesia than Assigned Judge
CASE NUMBER 01 C 5169 DATE July 18, 2002
CASE Lalit Gupta, et al. vs. Austrian Airlines, et al.
TITLE
Un the following box (a) indicute the purly filing the motion, e.g., plaintift, defendant, 3rd party plaintiff, und (b) state briefly the nature
MOTION: of the motion being presented. |
+r

DOCKET ENTRY:

(2) q Filed motion of [ usc listing in “Motion” box above.]

(2) Oo Brief in support of motion due

(3) o Answer brief to motion duc Reply to answer brief due.

(4) Q Ruling/Hearing on. set for at

6) Oo Status hearing[held/continued to} [set for/re-sct for] on set for at

(6) Oo Pretrial conference[held/continued to] (set for/re-set for] on set for at

(7) o Trial|set for/re-set for] on at

(8) B [Bench/Jury trial] [Hearing] held/continued to al

(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OOFRCP4(m) O General Rule21 [ FRCP41(a)(1) OO FRCP41(a)(2).

(io) [Other docket entry} | Enter Memorandum Opinion and Order. The court denies plaintiffs’
Motion to Strike [30-1] and denies defendants’ Motion for Summary Judgment [30-2]. Discovery
cut-off date is October 24, 2002, which includes experts, ifany. Final pretrial order is to be submitted
in open court at 9:30 a.m, on November 26, 2002. These dates are final and will not be extended for
cither party, whether agreed or not.

(11) L_ | {For further detail see order attached to the original minute order.]

No notices required, advised in open court,
No notices required,
Notices mailed by judge's staff
Notitied caunsel by telephane ate doc
| Packoting to mail notices. KM
Mail AO 450 form. Aufeg 2A tit -sq dockeving Weary initlats 6
Copy to judge/magistrate judge. “ ght
courtroam SO ka OL 20 date mulled gotice
cw deputy’s
initials
Oiiiiebedh as WF
central Clerk’s Office riling deputy icine



airlines’ liability. See, e.g., Krys, 119 F.3d at 1519 (“Lufthansa urges us to hold that a negligent
response to a passenger’s heart-attack symptoms constitutes an ‘accident.’”); Tandon, 926 F.
Supp. at 368 (“United Airlines argues that [decedent’s] death was caused by an accident covered
by the Warsaw Convention ...”); Northern Trust Co., 491 N.E.2d at 422 (stating that the airlines
argued the Convention applied and limited their liability), Even further, in many of these cases,
the court indicated that the plaintiff still could pursue a state law negligence action. See, e.g.,
Krys, 119 F.3d at 1530 (affirming district court’s findings after the case proceeded as a cormmon-
law negligence case); Abramson, 739 F.2d at 134 (“[T]he district court erred in failing to reach
plaintiff's negligence and willful misconduct claims after correctly finding there was no
“accident” under the Warsaw Convention.”); Tandon, 926 F. Supp. at 371 (concluding that
plaintiff's state law claims were not preempted by the Convention); Walker, 775 F. Supp. at 116
(“Plaintiff's negligence action under state law is therefore not preempted by the Warsaw
Convention.”); Northern Trust Co., 491 N.E.2d at 423 (“[P]laintiffs may bring a cause of action
against the air carrier under traditional common law tules.”); Fischer, 623 F. Supp. at 1066
(finding that plaintiff “properly pleaded a negligence action.”), These cases are not instructive
after the Supreme Court's decision in Tseng clarificd that the Convention is the exclusive
remedy for a passenger injured on an international flight.

In light of the modern trond of the law since 7’seng, and in the absence of any Seventh
Circuit ruling directly on point, this court follows the precedents of recent cases in finding that
the negligent failure of the flight crew to appropriately serve the needs of an ailing passenger can
constitute an “accident” under the Convention. It cannot be said, as a matter of law, that in the

context of the flexible application of the definition of “accident” and in the context of all the

11


“accident” under the Convention. See, e.g., Krys v. Lufthansa German Airlines, 119 F.3d 1515,
1520 (11th Cir. 1997) (“{I]n the absence of proof of abnormal external factors, aggravation of
a pre-existing injury during the course of a routine and normal flight should not be considered
an ‘accident’ within the meaning of Article 17.”); Abramson v. Japan Airlines Co.,739 F.2d 130,
132 (3d Cir. 1984) (finding that flight attendant’s worsening of hernia condition was not an
unusual or unexpected occurrence); Rajcooar v. Air India Ltd., 89 F. Supp. 2d 324, 328
(E.D.N.Y. 2000) (finding inadequate medical care does not constitute an “accident” without
some showing of unexpected circumstances), Tandon v. United Air Lines, 926 I. Supp. 366,
369-70 (S.D.N.Y. 1996) (finding that airline crew’s failure to respond with adequate medical
assistance to passenger suffering a heart attack did not constitute an “accident”); Walker v.
Eastern Air Lines, Inc., 775 F. Supp. 111, 114 (8.D.N.Y. 1991) (stating that parties agreed that
© “accident” occurred when airline crew aggravated pre-existing condition of passenger);
Northern Trust Co. v. American Airlines, ine. 491 N.E.2d 417, 423 (App. Ct. IH. 1985) (finding
that no “accident” occurred when defendants failed to immediately transport passenger to
hospital); Fischer v. Northwest Airlines, Inc., 623 F. Supp. 1064, 1065 (N.D. IIL. 1985) (finding
that airlines rcfusal to aid a passenger suffering a heart attack did not constitute an “accident”).
The court finds these cases unpersuasive. All but one of these decisions predate the
Supreme Court’s Tseng decision, which established that the Convention is the exclusive remedy
for injuries suffered on board an aircraft. See Tseng, 525 U.S. at 176. Thus, in all these cases,
the passenger who arguably had been harmed by the negligence of a carrier was not completely
deprived of a potential remedy. In fact, in many of these cases, it was the airline, not the

passenger, arguing that an accident had occurred, because the Convention would limit the

10


49 Stat. at 3018, Thus, in order to prevail on a claim under the Convention, a plaintiff must
prove that: (1) an accident (2) took place on board the aircraft or in the course of operation of
embarking or disembarking, (3) which caused (4) an injury. See McCaskey v. Continental
Airlines, Inc., 159 F. Supp. 2d 562, 569 (S.D. Tex. 2001) (citing astern Airlines, Inc. v. Floyd,
499 U.S. 530, 535-36 (1991)). Recently, the United States Supreme Court held that the
Convention provides international passcngers the exclusive means of recovery for injuries
suffered on an aircraft and, thus, precludes rclicf for causcs of action brought under state
common law. E/ Al Israel Airlines, Ltd. v. Tseng, 525 U.S. 155, 161 (1999) (“[R]ecovery for
a personal injury suffered ‘on board [an] aircraft or in the course of any of the operations of
embarking or disembarking’ ... if not allowed under the Convention, is not available at all.”).
In the present matter, the defendants maintain that no “accident” occurred.

The Supreme Court defined “accident” in this context as an unexpected or unusual event
or happening external to the passenger, and it instructed that this definition “should be flexibly
applied after an assessment of all the circumstances surrounding a passenger’s injurics.” Air
France v. Saks, 470 U.S. 392, 405 (1985). The Supreme Court also explained that, although the
“accident” must cause the passenger's injury, it need not be the sole causal factor. /d. Rather,
because “any injury is the product of a chain of causes,” a plaintiff under the Convention need
only “prove that some link in the chain was an unusual or unexpected event external to the
passenger.” Jd. at 406.

Plaintiffs concede that the decedent’s heart attack itself, or his internal reaction to the
normal operation of the aircraft, was not an “accident” under these definitions, However,

plaintiffs contend that the accident is not the heart attack itself, but the alleged aggravation of

7


This court ordered the parties to file motions on the pleadings addressing the applicability
of the Convention, jurisdiction and venue. (Ct. Orders dated Oct. 9, 2001 & Jan. 31, 2002.)
When the court ordered this briefing, it gave parties leave to take limited discovery on only these
limited issues. (Ct. Order dated Oct. 9, 2001.), At the request of the parties, the court clarified
ils order, again limiting discovery to the issues of applicability of the Convention, jurisdiction
and venue. (Ct. Order dated Apr. 2, 2002.) In response, defendants filed a motion for summary
judgment, arguing that (1) defendants are entitled to summary judgment because the decedent’s
death was not caused by an “accident” within the meaning of the Convention because neither
inadequate medical equipment nor negligent crew response constitutes an Article 17 accident,
and (2) plaintiffs’ complaint should be dismissed under the doctrine of forum non conveniens.
Also, plaintiffs have filed a motion to strike certain affidavits and, in the alternative, to strike
defendants’ reply memorandum.

Il. DISCUSSION

A. Plaintiffs’ motion to strike

As a threshold issue, the court will dispose of plaintiffs’ motion to strike, to establish
what evidence is admissible and, therefore, properly before this court in support of the summary
judgment motion. Plaintiffs are moving to strike (1) certain affidavits filed by the defendants
in support of their summary judgment motion and, in the alternative, (2) defendants’ reply
memorandum. The court will address each portion of the plaintiffs’ motion in turn.

First, plaintiffs argue that on May 23, 2002, ten days after defendants filed their reply
bricf, defendants filed two affidavits in further support of their summary judgment motion.
Plaintiffs argue that these affidavits should be stricken because they are outside the briefing

3


laws of Austria provide a cause of action for wrongful death based on the plaintiffs’ allegations.
Defendants submit the uncontested affidavit of Dr. Veronika Eva Maria Kozak (“Kozak”), an
atlorney licensed to practice law in the Republic of Austria who received her master and doctor
of law degrees in Vienna, Austria, and who has her own law firm with offices located in Vienna,
Austria. (Kozak Decl. | 1.) Kozak’s uncontested affidavit states that the Republic of Austria
isa signatory to the Warsaw Convention and that plaintiffs’ claims as set forth in their complaint
are recognized causes of action under Austrian law under the Warsaw Convention, the Austrian
Aviation Act, and the Austrian Civil Code. (Kozak Decl. 4 11.) Therefore, the court finds that
defendants have met their burden of showing that Austria is an available and adequate alternative
forum tor this action.
b, Private and public interest factors

Once a court determines that an adequate alternative forum exists, then it must balance
the private and public interest factors relevant to the choice of forum. Piper, 454 U.S. at 254-55;
Kamel, 108 F.3d at 803, Private interests factors include “(1) access to evidence; (2) witness
convenicncc; (3) costs associated with witness attendance; and (4) ‘all other practical problems
that make trial of a case easy, efficient, and economical.’” Cleary v. Sterenbuch, No. 01 C5109,
200) WI 1035285, at *4 (N.D. Ill. Sept. 10, 2001) (quoting Kamel, 108 F.3d at 802), Public
interest factors include: “the community’s interest in the dispute’s resolution, avoidance of
conflicts of laws, and the unfairness of requiring citizens in an unrelated forum to serve on a
jury.” Id.

Defendants argue that private interest factors support dismissal of plaintiffs’ action to

Austria because Austria is the place where (1) records relative to the Flight 542 are maintained;

14


The only evidence provided by defendants to support their arguments regarding private
and public interest factors are two paragraphs of a single affidavit of Markus Wimmer, the in-
house legal counsel for Austrian Airlines. These paragraphs state that (1) all the crew members
of Flight 542 who have information relative to the incident are based in Vienna, Austria, and (2)
the majority of the documents and records of the flight are located in “Vienna, Austria and/or
India.” (Wimmer Decl, {| 8-9.) Considering the two arguments for which defendants provide
evidence, defendants fail to demonstrate that the balancing of public and private interest factors
weighs in favor of dismissal under the doctrine of forum non conveniens.

Regarding the base of the crew members, defendants fail to show that this factor weighs
in favor of tral m Austria. First, according to Kozak, Austrian courts can compel the production
of certain documents and the attendance of unwilling witnesses. (Kozak Decl. | 10.) Second,
defendants have not identified any specific witness who refuses to submit to discovery here, and
some of these witnesses may be willing to testify here. See In re Bridgestone/Firestone, Inc.,
190 F, Supp. 2d 1125, 1141 n.22 (S.D. Ind. 2002) (finding this factor unpersuasive). Third,
United States courts readily accept deposition testimony when the witness is beyond the reach
of compulsory process, See id. at 1141 n.23 (citing Fep. R. Eviw. 804(a)(5) and (b)(1)).
Provided that the witnesses can be deposed, none of the parties would be without the benefit of
these witnesses’ testimony for trial in the United States. Finally, defendants provide no evidence
regarding the location of non-crew passengers, so by the same token, if the suit is brought in
Austria, there still will be costs for transporting and lodging these witnesses. Thus, this factor

does not weigh in favor of dismissal.

16


death was caused in part by inadequate medical equipment on the airplane and improper training
of the flight crew in the handling of in-flight medical emergencics.

Plaintiff Parveen Kumari Gupta is a legal immigrant of the United States and a resident
of Ohio. Plaintiff Lalit K. Gupta is a citizen of the United States and a resident of Ohio.
Defendant Austrian Airlines is a foreign air carricr engaged in the business of international
carriage by air of passenger, baggage, and cargo, and operates flights within the Republic of
Austria and between the Republic of Austria and other countrics, including the United States and
India. Austrian Airlines is a corporation organized and existing under the laws of the Republic
of Austria with its corporate headquarters and principal place of business in Vienna, Austria.

This court has subject matter jurisdiction pursuant to 28 U.S.C, § 1331, as the plaintiffs’
claims arise under the Warsaw Convention (“Convention”). Venue is proper here because
Austrian Airlines is subject to personal jurisdiction in the Northern District of Illinois. Also,
Article 28 of the Convention provides that an action for damages may be brought, at the
plaintiff's option, “cither before the court of the domicile of the carrier or of his principal place
of business, or where he has a place of business through which the contract has been made, or
hefore the court at the place of destination.” 49 Stat. at 3020 (emphasis added). Because
decedent's ultimate destination was Chicago, this action was properly brought in federal district

court in Chicago.

?The Warsaw Convention is the popular name for the Convention for the Unification of
Certain Rules Relating to International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, T.S.
No. 876. Deere & Co, v. Deutsche Lufthansa Aktiengesellschaft, 855 F.2d 385, 387 n.2 (7th Cir.
1988).


IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS emt
EASTERN DIVISION _ ‘ ‘
r a0
LALIT K. GUPTA, Administrator of the por - 7002
Estate of Om Parkash Gupta, deceased, wr 1 9

and PARVEEN KUMARI GUPTA,
surviving spouse of the decedent, Om
Parkash Gupta,

Plaintiffs, Case No. 01 C5169

v. Judge James H. Alesia

AUSTRIAN AIRLINES, and AUSTRIAN
AIRLINES - U.S. SUBSIDIARY,

eS SS Se HS SS SS

Defendants.

MEMORANDUM OPINION AND ORDER

Currently before the court are: (1) plaintiffs’ motion to strike, and (2) defendants’ motion
for summary judgment. For the reasons set forth below, the court (1) denies plaintiffs’ motion
to strike, and (2) denies defendants’ motion for summary judgment.

1. BACKGROUND'

On August 21, 2000, Om Parkash Gupta (the “decedent”) became ill and died while a
passenger on Austrian Airlines Flight 542, a non-stop flight from New Delhi, India to Vienna,
Austria, The decedent’s ultimate destination was Chicago, Illinois. Parveen Kumari Gupta, the
decedent’s surviving spouse, along with Lalit K. Gupta, the decedent’s brother and the

administrator of his estate, are the plaintiffs in this suit. The complaint alleges the decedent’s

‘Unless otherwise indicated, the following facts — taken from the parties’ Local Rule 56.1

statements — are undisputed.
on



circumstances surrounding decedent’s death, that the defendants’ allegedly inadequate
equipment and procedures did not constitute an “accident” under Article 17. Therefore, the court
finds that the Convention is applicable here. Accordingly, the court denies defendants’ motion
for summary judgment on these grounds.

3. Forum Non Conyeniens

Given the finding that this court has jurisdiction under the Convention, the court now will
address defendants’ alternative argument, that this action must be dismissed under the doctrine
of forum non conveniens. Under the doctrine of forum non conveniens, “a trial court may
dismiss a suit over which it would normally have jurisdiction if it best serves the convenience
of the parties and the ends of justice.” Kamel v, Hill-Rom Co., 108 F.3d 799, 802 (7th Cir, 1997)
(citations omitted).

The Seventh Circuit recently noted that “there is a strong preference for conducting the
litigation in the plaintiff's chosen forum, and that only rare circumstances make honoring this
choice inequitable. *[U]nless the balance is strongly in favor of the defendant, the plaintiff's
choice of forum should rarely be disturbed.’” /S7Jnt’l, Inc. v. Borden Ladner Gervais LLP, 256
F.3d 548, 553 (7th Cir. 2001) (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947)).
Dismissal is appropriatc only “when a trial in the chosen forum would result in vexation and
oppression to the defendant which would far outweigh the plaintiff's convenience or when the
chosen forum would generate administrative and Icgal cntanglements for the trial court.” Kamel,
108 F.3d at 802. See Piper Aircraft Co. v. Reyno, 454 U.S, 235, 255 (1981) (stating that the
strong presumption in favor of the plaintiff's choice of forum may be overcome “only when the

private and public interest factors clearly point towards trial in the alternative forum.”).

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(2) incident reports are maintained; (3) the training record for the flight crew is maintained; (4)
on-board medical kits are prepared and maintained; (5) the carrier is incorporated and has its
headquarters; and (6) the majority of liability witnesses are located. Defendants also contend
that all the vital witnesses -- including crew members and passengers of Flight 542 -- are located
outside the United States and beyond the compulsory process of this court, and for those that
would be willing to appear, the costs of transportation and lodging would be burdensome.
Finally, defendants contend that trial in Austria would be more expeditious and less expensive
than a trial in Tlinois because much of the evidence and testimony will be in German, and
translation costs would be burdensome. Defendants contend that public intcrest factors support
dismissal of plaintiffs’ action to Austria because (1) the need for translation services impose an
administrative difficulty in Illinois; (2) jury duty should not be imposed upon people in this
community that has no relation to the litigation; and (3) the fact that defendants operate flights
to Illinois and plaintiffs reside in Ohio do not warrant retention of jurisdiction.

Defendants continue to bear the burden of persuasion as to this element of the forum non
conveniens analysis. Defendants must provide enough information to enable the court to balance
the parties’ interests. Piper, 454 U.S. at 258. At least “some idea of the type of evidence
available” to establish kcy elements of the casc must be provided to the court. Macedo v. Boeing
Co., 693 F.2d 683, 689 (7th Cir. 1982). To balance these interests, the court needs information
permitting it to “scrutinize the substance of the dispute between the parties to evaluate what
proof is required, and determine whether the pieces of evidence cited by the parties are critical,
or even relevant, to the plaintiff's cause of action and to any potential defenses to the action.”

Van Cauwenberghe v. Biard, 486 U.S. 517, 528 (1988).

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