Hipolito v. Northwest Airlines, Inc. ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ELMER D. HIPOLITO, Administrator of 
the Estate of Augusto Samson
Hipolito, Deceased,
Plaintiff-Appellant,
 No. 00-2381
v.
NORTHWEST AIRLINES, INCORPORATED,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Robert G. Doumar, Senior District Judge.
(CA-00-186-2)
Argued: June 7, 2001
Decided: July 31, 2001
Before WILKINS and WILLIAMS, Circuit Judges, and
Andre M. DAVIS, United States District Judge for the
District of Maryland, sitting by designation.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Elizabeth Lida Montagna, HARLAN & FLORA, P.C.,
Norfolk, Virginia, for Appellant. Michael Wayne Kerns, DOMBR-
OFF & GILMORE, P.C., Washington, D.C., for Appellee. ON
BRIEF: Thomas J. Harlan, HARLAN & FLORA, P.C., Norfolk, Vir-
2 HIPOLITO v. NORTHWEST AIRLINES
ginia, for Appellant. Thomas B. Almy, James A. Eastwood, DOMBR-
OFF & GILMORE, P.C., Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
This is an appeal from the District Court’s grant of summary judg-
ment to Northwest Airlines, Inc. (Northwest), dismissing a claim that
the on-board death of one of its passengers, Augusto Hipolito, was
caused by his asthma condition and was not due to an "accident"
within the contemplation of the Warsaw Convention. We affirm.
I.
The case arose from the death of Mr. Hipolito on board Northwest
Flight 70 from Osaka, Japan, to Detroit, Michigan, on March 17,
1998. Hipolito was 74 years old and suffered from chronic obstructive
pulmonary disease. He traveled with two nebulizers, one battery-
powered and the other a plug-in unit, and with more than one inhaler.
Several hours into the flight, Hipolito experienced breathing diffi-
culties and, because his batteries were dead, he took his plug-in nebu-
lizer to the lavatory to administer himself aerosolized medicine to
relieve his condition. The electrical outlet in the lavatory delivered
115 volts of electricity; it was designed to shut off if one attempted
to power an incompatible appliance. Hipolito’s nebulizer caused the
lavatory outlet to shut off and he was unable to administer medica-
tion. He returned to his seat and his wife, Norma Hipolito, summoned
a flight attendant. The flight attendant gave him a bottle of oxygen,
but he was unable to get any oxygen from it so he cast it aside.
The flight attendant announced that the assistance of a doctor was
needed and three doctors came forward. Two of them, Drs. Kevin
HIPOLITO v. NORTHWEST AIRLINES 3
Mitts and Timothy Mologne, attended to Hipolito. They first
attempted to administer Hipolito’s inhaler (a bronchodilator) but
because he could not generate a deep enough breath, it was of no ben-
efit. The doctors then moved him to the front of the aircraft.
Dr. Mitts asked a flight attendant to take notes recording the time
when various interventions were administered. The contemporaneous
emergency incident form the doctors completed on the date of Hipoli-
to’s death records that the patient complained of shortness of breath.
(J.A. 35.) The doctors began administering oxygen via a face mask
at 12:45 p.m. They recorded that his breathing was "shallow with
poor air exchange and coarse rhonchi [upper respiratory sounds] and
wheezes." (Id.) The doctors recorded that Hipolito collapsed at 1:00
p.m., ceasing respiration, losing consciousness and in cardiac arrest.
The doctors began two-person CPR in an attempt to revive him. Dr.
Mitts injected 0.1 cc of 1:1000 epinephrine into Hipolito’s jugular
vein after several minutes of CPR. He administered two more such
injections with no response. When there was still no pulse 28 minutes
later, Hipolito was pronounced dead.
Testifying on deposition, sometimes through an interpreter, some-
times in English herself, Norma Hipolito recalled that when her hus-
band returned from the lavatory his face was pale white. (J.A. 115.)
She summoned a male flight attendant who brought an oxygen bottle;
when her husband tried to use it he could not get it to work and he
discarded it on the seat next to him. (J.A. 101.) She then showed the
plug-in nebulizer to a flight attendant who went to see whether there
was an outlet on board that could power it. Norma Hipolito followed
the flight attendant. (J.A. 96, 101-02.)
When Norma Hipolito returned, the doctors were moving her hus-
band forward and they lay him on the floor after a while. She did not
ask the doctors any questions. She stated on deposition that the doc-
tors did not administer oxygen to her husband while he was lying
down (J.A. 112.), but she observed that the doctors had a mask over
her husband’s face.
II.
As summarized below, the district court granted Northwest’s
motion for summary judgment. Thereafter, appellant filed a "Petition
4 HIPOLITO v. NORTHWEST AIRLINES
for Rehearing" (which the district court treated as a motion for recon-
sideration), arguing that the court had erred in failing to treat an
unsworn opinion letter, from a physician retained for purposes of the
litigation, as part of the summary judgment record. The district court
denied the motion for reconsideration, but also stated that even if the
document were to be treated as if it were a part of the summary judg-
ment record, the result would be the same. (J.A. 201-11.)
III.
The parties agree that the Warsaw Convention applies to this case.
Under Article 17 of the Convention, air carriers are "liable for dam-
age sustained in the event of the death or wounding of 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. The Con-
vention "established a presumption that air carriers are liable for dam-
age sustained by passengers as a result of the carrier’s negligent
conduct." Floyd v. Eastern Airlines, Inc., 872 F.2d 1462, 1467 (11th
Cir. 1989), rev’d on other grounds, 499 U.S. 530 (1991).
Recovery of damages under Article 17 requires that a claimant
establish that an "accident" occurred. Warsaw Convention Art. 17; Air
France v. Saks, 470 U.S. 392, 407 (1985). The Supreme Court has
defined "accident" as "an unexpected or unusual event or happening
that is external to the passenger," id. at 405, which causes an injury.
The Saks Court held that this "definition should be flexibly applied
after assessment of all the circumstances surrounding a passenger’s
injury." Id. The Court cited with approval decisions from "lower
courts in this country [that] have interpreted Article 17 broadly
enough to encompass torts committed by terrorists or fellow passen-
gers." Id. "But," the Saks Court held, "when the injury indisputably
results from the passenger’s own internal reaction to the usual, nor-
mal, and expected operation of the aircraft, it has not been caused by
an accident, and Article 17 of the Warsaw Convention cannot apply."
Id. at 406. We have observed that "‘accident’ refers to the cause of
injury rather than the injury itself." Sakaria v. Trans World Airlines,
8 F.3d 164, 170 (4th Cir. 1993), cert. denied, 511 U.S. 1083, 114 S.
Ct. 1835 (1994).
HIPOLITO v. NORTHWEST AIRLINES 5
The District Court ruled that because Norma Hipolito testified on
deposition that the oxygen bottle the flight attendant brought her hus-
band was empty, and Northwest presented no conflicting evidence,
for the purposes of summary judgment, the bottle was deemed empty.
(J.A. 164.) Also, despite Norma Hipolito’s deposition testimony that
she did not observe her husband receive oxygen, the court credited the
documentary evidence showing that "[t]wo passengers on the plane,
who happened to be doctors, began administering CPR to [Hipolito]
and provided him with oxygen." (Id.) (emphasis added).
Ultimately, the district court ruled that ". . . Northwest’s failure to
provide a cure to [Hipolito’s] asthma attack, assuming it could have
been cured," was not an accident under the terms of the Warsaw con-
vention. (J.A. 168, 170.) The court reasoned that the "asthma attack
was not an ‘accident,’ as it was not caused by an event external to
. . . [Hipolito,]" but was instead an "internal reaction to the usual, nor-
mal, and expected operation of the aircraft. Further, . . . Northwest’s
failure to provide [Hipolito] with a full bottle of oxygen is not the
type of external, unusual event for which liability is imposed under
the Warsaw Convention." (J.A. 170.)
IV.
We review de novo a district court’s grant of summary judgment.
Chisolm v. UHP Projects, Inc., 205 F.3d 731, 734 (4th Cir. 2000).
The district court’s evidentiary ruling that the late-filed unsworn opin-
ion letter was not part of the summary judgment record is reviewed
for abuse of discretion. Supermarket of Marlinton, Inc. v. Meadow
Gold Dairies, Inc., 71 F.3d 119, 126 (4th Cir. 1995); Rohrbough v.
Wyeth Laboratories, Inc., 916 F.2d 970, 973 n.8 (4th Cir. 1990).
V.
We have reviewed the record, briefs, and pertinent case law on this
matter de novo, and we have had the benefit of oral argument. In
addition, we have considered the authorities cited in the appellant’s
post-argument submission. Our careful review persuades us that the
rulings of the district court were correct. Accordingly, we affirm the
grant of summary judgment to Appellee on the reasoning set forth in
6 HIPOLITO v. NORTHWEST AIRLINES
the district court’s orders. See Hipolito v. Northwest Airlines, Inc.,
Civil Action No. 2:00cv186 (September 26, 2000; October 25, 2000).
AFFIRMED