Ilczyszyn v. Southwest Airlines CA1/1

Filed 6/8/22 Ilczyszyn v. Southwest Airlines CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
KELLY ILCZYSZYN et al.,
Plaintiffs and Appellants,
A158352
v.
SOUTHWEST AIRLINES CO., (Alameda County
Super. Ct. No. RG15766954)
Defendant and Appellant.
Southwest Airlines passenger Richard Ilczyszyn tragically suffered a
massive pulmonary embolism1 while locked inside an airplane lavatory
during the final stages of a flight from Oakland to Orange County. Rather
than treating Ilczyszyn’s circumstances as a medical emergency, the flight
crew perceived him to be a security threat. As a result, he did not receive
medical care until after the flight had landed and the other passengers had
disembarked. By then, he had gone into cardiac arrest. Although he was
resuscitated, he later died in a hospital. Ilczyszyn’s widow Kelly, together
with his three children, sued defendant Southwest Airlines Co. (Southwest)
alleging that the flight crew’s failure to provide medical assistance caused his
A pulmonary embolism occurs when an internal blood clot breaks off
1
and travels via the veins through the heart, lodging in a pulmonary artery
and blocking blood flow to the lungs.
death. Following a lengthy trial, the jury found that Southwest was
negligent but found against plaintiffs on the issue of causation.
On appeal, plaintiffs assert that the trial court erred in ruling at the
outset of trial that Southwest was immune from liability under both title 49
United States Code section 44941 (section 44941)2 of the Aviation and
Transportation Security Act, and Civil Code section 47, subdivision (b) for
any act or omission occurring after the flight crew decided to treat Ilczyszyn’s
medical emergency as a security threat. Plaintiffs contend these statutory
immunities apply only to the actual disclosure of a security threat, and not to
conduct associated with such disclosures. They also maintain that the
immunity is inapplicable here because the gravamen of their case was based
solely on the flight crew’s negligent failure to identify the medical emergency
and provide aid. They argue that the court’s alleged error limited both the
admissibility of their evidence and the scope of their arguments, making it
impossible for them to prove the element of causation.
We conclude that the trial court properly applied section 44941
immunity. Accordingly, we affirm.
2 In relevant part, 49 United States Code section 44941(a)
(section 44941(a)) provides: “Any air carrier . . . or any employee of an air
carrier . . . who makes a voluntary disclosure of any suspicious transaction
relevant to a possible violation of law or regulation, relating to air piracy, a
threat to aircraft or passenger safety, or terrorism . . . to any . . . Federal,
State, or local law enforcement officer, or any airport or airline security
officer shall not be civilly liable to any person under any law or regulation of
the United States, any constitution, law, or regulation of any State or
political subdivision of any State, for such disclosure.”
2
I.
FACTUAL AND PROCEDURAL BACKGROUND
A. Flight 4640
On September 19, 2014, Ilczyszyn was traveling by air from Chicago to
his home in Orange County. After arriving at the Oakland International
Airport, he boarded Southwest flight No. 4640 (Flight 4640), a connecting
flight from Oakland to John Wayne Airport. The one-hour flight took off at
around 9:15 p.m. At some point during the flight, Ilczyszyn left his seat and
went to a lavatory in the back of the plane. While inside the lavatory, he
suffered a massive pulmonary embolism.
The flight attendants became aware that Ilczyszyn was in the lavatory
and attempted to communicate with him through the closed door. Although
he was making crying sounds, he was unresponsive. After the flight
attendants tried unsuccessfully to access the lavatory by pushing on the
folding door, the airplane’s captain assessed the situation as a security threat
and initiated security protocols. He contacted Southwest ground operations
and requested that law enforcement officers meet the plane at the arrival
gate.
After the airplane landed, Orange County Sheriff’s Department
deputies spoke with the flight attendants and decided to deplane the
passengers before accessing the lavatory. By then, Ilczyszyn had gone into
cardiac arrest. When the deputies forced the lavatory door open, they found
him unconscious with no pulse. After receiving cardiopulmonary
resuscitation (CPR), he recovered a stable heart rhythm. By this time, he
had already suffered severe brain damage due to lack of oxygen. He died in a
hospital the following day. An autopsy report listed the cause of death as
pulmonary thromboembolism due to deep venous thrombosis.
3
B. Plaintiffs’ Legal Action
1. Complaint and Summary Judgment Motions
On April 20, 2015, plaintiffs filed a wrongful death action against
Southwest and the flight crew on Flight 4640, including pilots Captain
Joseph Walker and First Officer Christopher Krawec, and Flight Attendants
Cynthia L. Jenkins, Christina Green, Jenna A. King, and Kristina Lynn
Klotz. Plaintiffs alleged the flight crew was aware that Ilczyszyn was
experiencing a medical emergency but decided to treat him as a disruptive
passenger, leaving him unattended and delaying medical treatment by falsely
reporting to law enforcement personnel that he had barricaded himself in the
lavatory.
In December 2017, Southwest filed motions for summary judgment,
asserting that it and the individual employee defendants were entitled to the
federal immunity for reporting suspicious behavior under section 44941.
Southwest also argued that plaintiffs’ claims were barred by Civil Code
section 47, subdivision (b), which provides immunity for reports of suspected
criminal activity made to law enforcement. Southwest further asserted that
its employees’ conduct did not cause Ilczyszyn’s death.
In June 2018, the trial court granted summary judgment in favor of
Walker and Krawec after determining that the pilots’ security-related reports
were subject to section 44941 immunity and were also privileged under Civil
Code section 47, subdivision (b). However, the court denied summary
judgment as to the flight attendants and Southwest.3 Among other things,
the court found that “Southwest has not established as a matter of law that
all of its alleged liability derive[d] from the ‘disclosure’ to law enforcement of
3 The individual defendants were dismissed from the lawsuit prior to
trial.
4
a suspected security threat.” The court also found that there were triable
issues as to causation, based on the likely testimony from competing medical
expert witnesses.
2. Motion in Limine No. 4
Before trial, Southwest filed motion in limine No. 4. Southwest
invoked section 44941’s immunity in arguing that the exclusion of certain
evidence was “necessary to avoid a jury potentially imposing liability based
on allegedly inaccurate or incomplete language used by an airline employee
when reporting, to law enforcement, what he or she understood, believed or
feared about a passenger’s suspicious behavior.” Specifically, Southwest
sought to preclude plaintiffs from offering any evidence or argument arising
from (1) Captain Walker’s security-related communications with Southwest
ground personnel; (2) reports that Southwest ground personnel made to law
enforcement officers; and (3) the conduct that followed these reports,
including the officers’ decision to deplane the passengers before accessing the
lavatory. Southwest also urged that plaintiffs should be barred from
asserting that its employees had a duty to further assess or investigate
Ilczyszyn’s situation once they became suspicious that he posed a security
threat. Alternatively, Southwest contended that this evidence should be
excluded under Civil Code section 47, subdivision (b).
In opposition, plaintiffs argued that section 44941 applies to
“disclosures” only, and not to actions taken as a result of such disclosures.
They also asserted that Civil Code section 47 does not bar recovery for
personal injuries arising from tortious conduct. They stressed that their case
was not based on any disclosure or statement. Instead, their claim was that
had the flight attendants made a proper assessment of Ilczyszyn’s condition a
security threat never would have been declared and the plane would have
5
been met at the arrival gate by paramedics, not law enforcement. Following
several hearings and two rounds of supplemental briefing, the court granted
the motion in part.
First, the trial court divided the facts of the case into four temporal
phases. Phase 1 consisted of the period of time during which the flight
attendants discovered Ilczyszyn in the bathroom and tried to assess his
situation. Phase 2 consisted of the period between when Captain Walker
first spoke to the flight attendants and when he declared a security threat.
Phase 3 consisted of the period during which the plane was in “lockdown.”
The final phase, Phase 4, consisted of the period after the plane landed and
law enforcement took control of the situation.
The trial court determined that Southwest was immune from liability
for conduct occurring after Phase 1, that is, “after the flight attendants made
their initial report to the captain of the potential security threat posed by Mr.
Ilczyszyn which formed the basis for the captain’s subsequent orders [to
initiate security protocols].” The court concluded that evidence of such
conduct would be inadmissible as it was “irrelevant to the jury’s
consideration.” As to Phase 1 itself, the court ruled that plaintiffs would be
“entitled to present . . . their version of the evidence related to the initial
assessment [of Ilczyszyn] and make any reasonable arguments that flow from
any misassessment . . . during that very first interval of time.”
C. The Jury Trial
In their opening argument, plaintiffs’ counsel contended that the
Southwest flight crew negligently assumed Ilczyszyn was a security threat
rather than a person suffering a medical emergency, asserting that the crew’s
failure to provide him with basic aid and oxygen after he fell ill was a
6
substantial factor in causing his death. Below, we summarize the extensive
evidence introduced at trial.
1. The Flight
On the evening of Ilczyszyn’s flight, Jenkins was assigned to the front
of the cabin as the lead flight attendant. As the lead flight attendant, she
communicated with the other flight attendants and the pilots via the
airplane’s cabin service interphone. Green and King were assigned to the
back of the cabin, while Klotz was assigned to work the front of the cabin
during takeoff and landing, and the back of the cabin during the flight.
Ilczyszyn was seated in a window seat next to a couple who were both
licensed physicians.
At some point before the flight’s final descent, Ilczyszyn left his seat
and went to a lavatory in the back of the plane. While inside the lavatory, he
suffered a massive pulmonary embolism. Passengers who were seated in the
back of the plane testified that they heard unusual noises coming from the
lavatory. One witness described the noises as an eerie sound that she had
never heard before. Another said he heard loud noises, almost like grunting
or growling. The sounds would get louder and then stop, and then go from
softer to louder again. The volume and frequency of the sounds decreased as
the airplane got closer to landing.
As the flight attendants were cleaning the cabin in preparation for final
descent, they heard what sounded like a child crying. Green went to the back
row where a family of four was sitting and asked the father if everything was
okay. He told her that the crying was coming from the lavatory. Klotz
walked up the aisle to try and locate the parents of the crying child. When
she realized that someone, possibly the child, was still in the lavatory, she
began asking passengers who was with the small child in the bathroom. A
7
woman told her that the person in the lavatory was not a child; it was a man
who had been in there for a while.
The flight attendants went to the lavatory and knocked on the door but
there was no response. They knocked again and asked, “Do you need help?”
and “Are you okay? Can you open the door?” Initially, King and Green
realized that the person inside could possibly have been experiencing a
medical issue. Green was concerned because everyone on board needed to be
seated with their seat belts on in preparation for landing.
About five minutes before the “ding” or chime signaled the airplane’s
final descent, Klotz called Jenkins on the interphone and told her that a male
passenger was crying in the rear lavatory and would not come out or
acknowledge the crew. Jenkins told Klotz to get the man out of the lavatory.
She instructed the flight attendants to pound loudly on the door several times
and, if he did not acknowledge them, to let him know that they were going to
open the door.
Klotz returned to the lavatory and told King and Green that they
needed to unlock the door and get the man out. At that time she believed the
only way to access the lavatory was by unlocking the folding door and
pushing it in. The flight attendants knocked and asked the man if he could
unlock the door, and then told him they were going to unlock it for him and
come inside. He did not respond.
A viewing hole can be accessed by sliding the latch on the lavatory
door. King slid the latch, and she and Green looked inside. They saw a fully
clothed man sitting on the toilet facing the mirror. His body was turned
with his head down and his arms resting on the sink. He was crying. He did
not move and did not make any threatening gestures. He was not saying
anything and did not respond to their questions. For a person of Ilczyszyn’s
8
size,4 one would be able to view his head and torso through the opening. His
feet would not be visible due to the limited viewing angle.
The space inside the lavatory is very small. The measurement from the
lavatory door to the front of the toilet is one foot 7.5 inches, and from the wall
to the sink is one foot nine inches. The door is a bifold door, six feet three
inches tall, that slides from right to left. The two sides fold together towards
the inside as the door is slid to the left. The door is affixed with two pins or
hinges located on the top and bottom of the left side. A roller is attached at
the top at the center of the door. To open the door from the outside, you push
on the middle of the door. If a man of Ilczyszyn’s size was sitting with his
head on the sink, his feet would be positioned so as to block the door as it was
being pushed in.
Green and King tried to push the door open. As they pushed on the
door, Klotz pulled at its lower edge. They could not get the door open because
Ilczyszyn’s foot and leg were pressed up against it. His foot was pressed so
hard against the door that his shoe created an opening at the door’s bottom
corner.5 There was conflicting testimony as to whether Ilczyszyn kicked the
door as the attendants were trying to pry it open.6
4 Ilczyszyn was six feet one inch in height and weighed 229 pounds.
5 An expert witness for Southwest, estimated that it would take
approximately 20 to 40 pounds of force to partially push open the door so that
a foot could be visible from the outside.
6 It was revealed during trial that the lavatory door can easily be
detached by removing two release pins. In June 2014, Southwest distributed
a safety update notifying flight attendants that the lavatory door could be
removed at the hinges by pulling out the pins at the top and bottom of the
door and popping it off. Jenkins was not aware of the update at the time of
the flight. King had not been trained on how to remove the door, but a flight
attendant on a prior flight had shown her how to do it. During the incident,
9
At this point, King came to believe that the man was intentionally
blocking the door. Green was concerned because his behavior was not normal
and appeared suspicious. Two or three minutes after Klotz completed her
first call to Jenkins, she called Jenkins a second time. Klotz reported that
they had tried to open the door but it was being held closed by the passenger.
The pilots can monitor calls being made on the interphone. First
Officer Krawec was monitoring the interphone when he overheard Klotz and
Jenkins discussing a passenger in the rear lavatory who was refusing to come
out. He alerted Captain Walker because the airplane was in final descent.
Walker came on the line and spoke with Klotz and Jenkins. He told them to
leave the passenger in the lavatory. He then called for law enforcement to
meet the airplane at the arrival gate and declared a “lockdown.” At trial,
Walker testified that the steps he and the crew took after his conversation
with Klotz were consistent with how flight crews are trained to address
potential security threats.7
After the airplane reached the arrival gate, Orange County Sheriff’s
deputies entered the aircraft and spoke to the flight attendants. The lead
she did not suggest removing the door because the airplane was descending
and there would be nowhere to secure the door for landing. It also would
have blocked an emergency exit.
7 Extensive evidence was presented during the trial regarding current
training protocols for airline security. Much of this evidence was accorded
sensitive security status and was placed under seal and treated as
confidential. Because of security concerns, the federal government has not
made public the details of “airport security programs.” (See 49 U.S.C.
§ 114(s); 49 C.F.R. § 1520.5.) The confidential evidence offered at trial was
relevant to Southwest’s argument that its employees were not negligent
because they had responded appropriately to a perceived security threat.
Because the jury found in favor of plaintiffs on the element of negligence, we
will not refer to any of the confidential evidence in this opinion.
10
deputy ordered all the passengers to exit the plane before he and other
deputies accessed the lavatory. When the deputies finally contacted
Ilczyszyn, he was in cardiac arrest.8 CPR was administered and emergency
medical responders were summoned.
Ilczyszyn was asystole, which means there was no electrical or
mechanical activity in his heart. After receiving medical interventions, a
relatively stable heart rhythm was restored and his heart began pumping on
its own. He was transported to a hospital where died the next day following
severe brain swelling due to prolonged lack of oxygen.
2. Medical Support and Flight Attendant Training
The jury was told that the airplane on Flight 4640 was furnished with
emergency medical equipment, including portable oxygen bottles and a
defibrillator. Flight attendants are trained to recognize and treat medical
emergencies, and to administer CPR and oxygen. They are authorized to
page the cabin and ask for any medical providers on the airplane to provide
assistance. They can also consult with on-call physicians on the ground. The
captain can call for paramedics to meet an ill passenger at the arrival gate.
It is undisputed that while Jenkins knew that unresponsiveness and
crying could be symptoms of a serious medical condition, she did not tell the
other flight attendants to assess Ilczyszyn’s health. Further, although other
flight attendants testified that they initially thought he might have been
experiencing a medical emergency, they did not page the cabin for a health
care provider. Nor did they seek the advice of a ground-based medical
consultant. The flight was not a full flight, and the attendants could have
8The jury was told that Ilczyszyn went into cardiac arrest as the
airplane was touching down.
11
laid Ilczyszyn in a row of seats and given him oxygen had they removed him
from the lavatory.
Kathleen Lord-Jones testified for plaintiffs as an expert on the
standard of care for flight attendants. She explained that flight attendants
are trained to assess and treat medical symptoms using the equipment that
is available inside the aircraft. She opined that the flight attendants on
Flight 4640 breached the standard of care by failing to assess the situation as
a medical event. She noted that Ilczyszyn was positioned with his head down
on his arm, was not moving, was continually crying, and was unresponsive to
their questions. These are all indications of a serious medical situation. Per
their training, the flight attendants should have assessed him to see if he was
having a stroke. They also breached the standard of care by failing to provide
him with oxygen, failing to communicate effectively with each other, and
failing to read the training manual update on how to remove the lavatory
door.
3. Medical Evidence
a. Plaintiffs’ Expert Witnesses
Dr. Michael Fishbein testified as an expert in pathology. He stated
that Ilczyszyn had died of a pulmonary embolism. A pulmonary embolism
occurs when a blood clot forms inside the body and breaks off, traveling
through the veins to the right side of the heart and into the main blood
vessels that go to the lungs, which are the pulmonary arteries.9 An embolism
In its appellate brief, Southwest twice inserts a disturbingly graphic
9
photograph of a massive blood clot that was shown to the jury but was not
made an exhibit. Southwest’s counsel are experienced litigators and know
better than to proceed in this manner. California Rules of Court,
rule 8.204(d) permits a party to attach to a brief “copies of exhibits or other
materials in the appellate record.” Because the photograph was not a trial
12
can travel to the lungs quickly, within seconds to minutes. Dr. Fishbein
opined that Ilczyszyn’s blood clot might have been related to Achilles tendon
surgery that he underwent in July 2014, about two and a half months before
suffering the embolism.
Ilczyszyn’s autopsy showed that both his left and right pulmonary
arteries were partially blocked by blood clots. The clots were up to 1.5
centimeters in diameter, a little more than half an inch. The clots found
during the autopsy would have been the same size as when Ilczyszyn was on
the airplane, because clots do not change in size if a patient dies within one
day. Dr. Fishbein estimated that Ilczyszyn’s pulmonary arteries would have
been at least 2.0 centimeters and up to 2.4 centimeters in diameter.
Therefore, his arteries were about two-thirds (or 66 percent) to 75 percent
blocked. This blockage would have caused a decrease in the oxygen available
to his organs and would have forced his heart to work harder, creating the
potential for cardiac arrythmia.
During cross-examination, Dr. Fishbein agreed with Southwest’s
counsel that extensive CPR like that which Ilczyszyn received can cause clots
to break up and move around. He noted that while Ilczyszyn’s blood oxygen
level was dangerously low when measured by first responders, it climbed to a
normal level after he was resuscitated. Usually death from pulmonary
embolism arises from a combination of factors. Stress on the heart muscle
exhibit, it is not part of the appellate record. We therefore decline to consider
it. (See Duggan v. Moss (1979) 98 Cal.App.3d 735, 739 [disregarding
affidavits included in opening brief that were not part of the appellate
record]; People v. Hickok (1964) 230 Cal.App.2d 57, 60 [“Appellant’s affidavit,
attached to his opening brief, forms no part of the record on appeal, and may
not be considered by us in our disposition of the issue raised here.”]; Ivens v.
Simon (1963) 212 Cal.App.2d 177, 182–183 [disregarding exhibits attached to
a brief that were not part of the appellate record].)
13
caused by pressure from the clot can cause heart failure. Regarding oxygen,
Dr. Fishbein agreed with Southwest’s counsel that the problem is not that
oxygen is not getting into the lungs. The problem is that oxygenated blood is
not getting out of the lungs.
Dr. Jeffrey Goodman testified as an expert in the care and treatment of
irregular heart rhythms. He explained that pulmonary embolisms affect the
body by decreasing the amount of oxygenated blood that is delivered to vital
organs like the brain and the heart. An established way to raise oxygen
levels and prevent heart failure is to give the patient supplemental oxygen.
A patient can be given 100 percent oxygen, which will increase the amount of
oxygen that is delivered to vital organs. This occurs because when a
pulmonary embolism is not completely blocking the heart’s vessels, some
blood is still circulating, and supplemental oxygen will increase the amount
of oxygen available to the blood that does get through.
Dr. Goodman opined that Ilczyszyn would have survived if 100 percent
oxygen had been administered to him on the airplane before the security
threat was declared. There was a reasonable degree of medical probability
that Ilczyszyn would not have gone into cardiac arrest because the
intervention would have supplied more oxygen to his vital organs. When he
was first discovered in the lavatory, he was still alive and had not incurred
significant, irreversible brain damage because he was still oxygenating. His
heart had not yet arrested because he was still making noises. Even after
suffering cardiac arrest, he was later resuscitated and therefore could have
been resuscitated at an earlier point.
b. Southwest’s Expert Witnesses
Dr. Timothy Albertson testified for Southwest as an expert in
pulmonology. He reiterated that Ilczyszyn’s cause of death was a massive
14
pulmonary embolism. A “massive” pulmonary embolism is one so large and
so strategically placed that it results in significant changes in a patient’s
physiology, often resulting in cardiac arrest. He opined that the pulmonary
embolism Ilczyszyn suffered was not survivable, as such embolisms have a 65
to 95 percent mortality rate. Even if he had been given 100 percent oxygen
on the airplane, Ilczyszyn would not have lived.
Dr. Albertson noted that because the oxygen bottles on an aircraft are
small, it is not possible to give a patient 100 percent oxygen. Only about 25
percent oxygen can be administered. A hospital ventilator can provide a
patient with 100 liters of oxygen per minute, which is about 20 to 25 times
more oxygen than a portable oxygen bottle can provide. But regardless of the
percentage of oxygen being delivered, it is impossible to oxygenate blood that
does not pass through the right side of the heart and into the lungs. Dr.
Albertson agreed with Dr. Fishbein that the problem with a pulmonary
embolism is not that oxygen is not getting into the lungs; the problem is that
oxygenated blood is not getting out of the lungs.
Dr. Albertson stated that Ilczyszyn’s pulmonary embolism would not
have impeded his ability to inhale oxygen up until the point where he went
into cardiac arrest. However, giving additional oxygen would not have helped
because his primary problem was a blockage in blood flow. If blood is not
going through the circulatory system, then oxygen cannot be delivered to the
body’s tissues. Because there was a partial blockage only, it is likely that
some blood was still getting through. However, there was not enough blood
flow to prevent his death. The only reasonable treatment available on the
airplane would have been supplemental oxygen, but this would have been
ineffective because of his low blood flow rate.
15
Apart from causing a deficit of oxygenated blood, a pulmonary
embolism can lead to cardiac arrest because the right ventricle is forced to
pump harder than normal against the blockage. Giving more oxygen does not
solve this pumping problem. In Dr. Albertson’s opinion, it was inevitable
that Ilczyszyn would suffer cardiac arrest on the airplane. Even in a hospital
setting, it is possible that such a patient will not be treated in time before
they suffer cardiac arrest.
Dr. Albertson told the jury that a return of spontaneous circulation
does not mean the patient will survive. Many of the patient’s organs may
already be damaged, and a return of circulation does not alter the statistical
likelihood that 65 to 95 percent of people who suffer a massive pulmonary
embolism are going to die. He explained that Ilczyszyn’s circulation probably
returned because the blood clot was gelatinous, not solid, and the CPR efforts
helped displace the clot to allow more blood to flow. By then, his brain had
sustained damage from low blood flow and he had no brain activity when he
was admitted to the hospital.10
Dr. Albertson agreed with plaintiffs’ counsel that if Ilczyszyn had made
it to the emergency room before his cardiac arrest, or had not suffered cardiac
arrest at all, it is more likely than not that he would have survived. But on a
scale of 1 to 10 in terms of likelihood of causing cardiac arrest, Ilczyszyn’s
pulmonary embolism was a 10. Dr. Albertson opined that none of the medical
interventions available on the airplane would have stopped Ilczyszyn’s
pulmonary embolism from progressing to cardiac arrest. And while 97 to 98
10Dr. Albertson noted that by the time the first responders initiated
CPR, Ilczyszyn was in full cardiac arrest. Before he arrived at the hospital,
he had a Glasgow Coma Score of 3, which is the lowest number on the scale.
This score is consistent with severe neurological impairment, suggesting the
event that caused his cardiac arrest was severe.
16
percent of people who experience pulmonary embolisms do survive, those who
have suffered cardiac arrest on arrival at the hospital have a 95 percent
mortality rate. Additionally, 80 percent of patients who are put on
mechanical ventilation die, and 77 percent of those who receive CPR will die.
Dr. David Bach, an expert in cardiology, concurred that Ilczyszyn’s
massive pulmonary embolism was not survivable. A massive pulmonary
embolism will likely lead to cardiac arrest. Only a mechanical disruption of
the clot can stop this progression. Without treatment, cardiac arrest will
occur within the first two hours of onset, but it can occur within seconds.
Dr. Bach noted that a pulmonary embolism is a mass that interrupts
normal blood circulation by creating a mechanical obstruction inside the
pulmonary artery. He opined that the first responders were able to get a
return of spontaneous circulation because they used a number of heroic
measures, like CPR, epinephrine, and intubation, plus they shocked him
three times. However, death was still likely because of the underlying
problem, namely, the blockage affecting the heart’s ability to pump. The fact
that Ilczyszyn’s blood pressure stayed up before he died was, in part, related
to all the medications he was receiving to support blood pressure and the
medical interventions that he had received.
Dr. Bach opined that even if the pulmonary artery blockage is
incomplete, a clot is considered to be a “massive” pulmonary embolism if it
causes a drop in blood pressure. Ilczyszyn’s pulmonary embolism lowered his
blood pressure, as demonstrated by his inability to communicate while he
was in the lavatory. Consistent with other expert testimony, Dr. Bach
explained that giving oxygen will not help prevent cardiac arrest in such
cases because the problem is not that there is a lack of oxygen in the airways;
the problem is that the heart is not able to pump blood into the lungs to pick
17
up the oxygen. Also, oxygen does not treat right ventricular dysfunction, and
the supportive measures available on the plane would not have prevented the
pulmonary embolism from progressing to cardiac arrest. Supplemental
oxygen will not increase a patient’s blood pressure, and intravenous fluids
also will not help. The appropriate treatment would have been with drugs
that dissolve blood clots, or some kind of mechanical disruption, either
surgery or catheter based. But cardiac arrest can occur so quickly that these
disruption options cannot always be taken in time.
Dr. Mitchell Garber also testified as an expert witness for Southwest.
He is a medical doctor who specializes in aerospace medicine. He helped
prepare an animation of a massive pulmonary embolism that was played for
the jury.11 The animation showed a blood clot in the leg breaking off and
moving up towards the heart.12 The blood vessels widen as they get closer to
the heart, so there is less and less resistance as the blood clot travels. The
clot goes into the right atrium and proceeds through the right ventricle,
lodging in the pulmonary arteries. The pulmonary arteries are narrower
than the blood vessels that lead to the heart and the clot has nowhere to go.
It coils up inside the “pulmonary trunk,”13 compressing into something that
11 Plaintiffs’ expert Dr. Fishbein disagreed with Southwest’s
representation that Ilczyszyn’s clot was two feet long. He had never seen a
clot that long in a leg vein, and a clot of that length would have involved
much more tissue than was described in the autopsy report. He also
challenged the animation, which showed an almost complete blockage of the
pulmonary trunk. Such a condition was not described in the autopsy report
and was inconsistent with the manner of death.
12The vast majority of pulmonary thromboemboli come from clots in
the lower leg.
13 The pulmonary trunk is the outflow vessel from the heart. It splits
into the right pulmonary artery and the left pulmonary artery.
18
looks like a big knot. Some blood will get around this obstruction, but the
vast majority of blood will be blocked off. Blood is thus impeded from
reaching the lungs to receive oxygen. This results in oxygen deficiency in
tissues and vital organs like the brain, leading to severe complications.
Dr. Garber explained that if a person’s brain does not get enough
oxygen, he or she will become unconscious and will suffer brain damage
within three to 10 minutes.14 In the case of a massive pulmonary embolism
like the one Ilczyszyn had, the person would survive about 10 minutes before
suffering permanent brain damage. Dr. Garber noted that while there was
no evidence of a pulmonary trunk blockage at the time of autopsy, the
passage of time would have reduced the clot. Also Ilczyszyn underwent
extensive CPR, which would have affected the structure of the clot.
Dr. Garber testified that the vast majority of people with a massive
pulmonary thromboembolism do not survive. About 50 percent suffer cardiac
arrest and die within the first 30 minutes. Even though medical personnel
were able to restart Ilczyszyn’s heart, this did not resolve the underlying
problem. By then the brain damage had already occurred. Cardiac arrest
was largely inevitable as the end result of this pulmonary embolism. If the
clot had only been blocking 50 percent of the pulmonary artery, there would
have been sufficient blood flow to avoid cardiac arrest. The body does have a
natural process for dissolving clots, but here the clot was too large. Dr.
Garber opined that Ilczyszyn could not have survived even if the embolism
had occurred while he was in a hospital, and nothing could have been done on
the airplane to save him.
14A laceration on the bridge of his nose suggested that Ilczyszyn lost
consciousness and hit his head on something in the lavatory. Even if he was
unconscious, he still could have made noise.
19
c. Plaintiffs’ Rebuttal Witness
Pulmonologist Dr. Leslie Stricke stated that when treating a patient
with a pulmonary embolism, the first thing he will do is give the patient
oxygen. An “Ambu bag,”15 which was available on the airplane, is a very
effective way of delivering oxygen, delivering close to 100 percent oxygen. An
Ambu bag will not only help to deliver oxygen, it will also blow off the carbon
dioxide by ventilating the lung. If Ilczyszyn had been given oxygen through
the Ambu bag, his heart would have kept working, his blood pressure would
not have dropped, and he would not have had cardiac arrest.
Dr. Stricke stated that while Ilczyszyn did have a 1.5-centimeter
blockage, there was still space for blood to go around. Even when a person’s
blood-oxygen level is low, blood that is saturated with oxygen will get to the
brain and the heart. Ilczyszyn’s coronary arteries were functioning very well,
and his heart could have acquired oxygen through coronary circulation, which
would not have been affected by a blood clot in the pulmonary artery.
Dr. Stricke disagreed with the defense position that even if Ilczyszyn
had been given 100 percent oxygen he still would have had cardiac arrest and
died. Oxygen would have improved his heart function and would have
prevented major brain injury. In Dr. Stricke’s experience, the patient
survival rate is over 80 percent for persons with clots in their left and right
pulmonary arteries. This view is supported by medical literature. However,
on cross-examination, Dr. Stricke agreed that the size of a clot is relevant to
mortality.
15An Ambu bag is an inflatable bag that is attached to a face mask.
When the device is secured to an oxygen bottle and the mask is pressed over
the patient’s airway, oxygen can be forced into the lungs by squeezing the
bag.
20
4. Economic Damages Testimony
Ilczyszyn had worked as a commodities broker since 2005. His annual
income was about $250,000 per year up until 2011, when he started his own
brokerage firm and earned $370,000 in his first year. Before he died in
September 2014, he had already earned $423,000 for 2014.
Plaintiffs’ economist expert witness Stan Smith analyzes wage loss in
wrongful death and personal injury cases. He opined that had Ilczyszyn
survived, he would have earned a little over $1.5 million from the date of his
death to the time of trial. As to future loss of earnings capacity, Smith
assumed that his wages would grow at a rate of 1 percent a year above
inflation. Assuming he had continued to work through age 75, Ilczyszyn
would have earned almost $11 million.
Southwest’s economist expert witness Mark Cohen calculated past lost
income support at $804,775. For future income support, Cohen testified that
Ilczyszyn would have provided almost $2.3 million for an average work life
expectancy, and almost $2.7 million had he retired at age 65.
D. Closing Arguments
During their closing argument, plaintiffs’ attorneys argued that if
Ilczyszyn had been given supplemental oxygen on the airplane his blood
pressure would not have dropped, he would not have had cardiac arrest, and
he would have survived. They asked the jury to award Kelly and Ilczyszyn’s
minor child a total of $20 million each in damages, and $5 million each in
damages to his two adult children.
In addition to arguing against a finding of negligence, Southwest’s
attorney challenged plaintiffs’ theory of causation, asserting that Ilczyszyn’s
death was caused by his massive pulmonary embolism. Counsel emphasized
that patients with this condition will die 65 to 95 percent of the time, and
21
that the vast majority of these patients die within 30 minutes of onset.
Counsel stressed that this condition was so serious that even if the crew had
done everything right Ilczyszyn still would have died.
E. Jury’s Verdict
On July 19, 2019, the jury returned its special verdict finding that
Southwest was negligent but that the negligence was not a substantial factor
in causing Ilczyszyn’s death.
Judgment in favor of Southwest was filed on August 26, 2019. This
appeal followed.
II.
DISCUSSION
A. Standards of Review
Plaintiffs’ primary contention on appeal is that the trial court erred in
concluding that section 44941 confers absolute immunity from liability for
any act or omission occurring after the disclosure of an airline security
threat, including conduct that merely establishes causation. They assert that
the court’s immunity ruling “categorically barred” them from introducing
“virtually all of their causation evidence at trial,” and resulted in jury
instructions that made it “virtually impossible” for them to causally link
Ilczyszyn’s death to Southwest’s negligence. They further complain that the
court permitted Southwest to “weaponize Section 44941” by allowing it to
introduce evidence of the flight crew’s own good conduct following Phase 1,
conduct that plaintiffs were not allowed to impeach or rebut.
Trial courts ordinarily enjoy broad discretion with respect to the
admission and exclusion of evidence in ruling on motions in limine.
(Katiuzhinsky v. Perry (2007) 152 Cal.App.4th 1288, 1294.) Nonetheless, that
discretion “is limited by the legal principles applicable to the case.” (Ibid.)
22
Where a trial court’s exclusion or admission of evidence “ ‘ “transgresses the
confines of the applicable principles of law,” ’ ” it is an abuse of discretion.
(Ibid.) Additionally, “[t]he legal adequacy of jury instructions is a legal issue
subject to the de novo standard of appellate review.” (Isip v. Mercedes-Benz
USA, LLC (2007) 155 Cal.App.4th 19, 24 (Isip).)
B. Additional Background
As noted above, the trial court partially granted motion in limine No. 4,
ruling that section 44941 immunized Southwest from liability for conduct
occurring after Klotz informed Walker of the potential security threat, i.e.,
after Phase 1. The court rejected plaintiffs’ request to limit the immunity to
the crew’s verbal statements only, ruling that the immunity also extended to
“the subsequent events that result[ed] from the statement[s].” Citing to Baez
v. JetBlue Airways Corp. (2d Cir. 2015) 793 F.3d 269 (Baez), the court
explained that restricting the immunity to the verbal statements would
render the immunity effectively “meaningless.”
Because Southwest could not be held liable for post-Phase 1 conduct,
the trial court limited the evidence and argument that plaintiffs could offer to
the jury with respect to conduct occurring during Phases 2, 3, and 4. For
example, plaintiffs were barred from suggesting to the jury that the pilots
could have selected a different flight path, air speed, or airport to effect an
emergency landing.
Shortly before opening statements, the parties again argued about the
scope of motion in limine No. 4, this time with respect to the element of
causation. Southwest indicated that plaintiffs were proceeding under two
causation theories. First, that Ilczyszyn’s pulmonary embolism would not
have progressed to cardiac arrest had he received treatment, such as oxygen,
on the aircraft. And second, that the cardiac arrest he did suffer would not
23
have been fatal had he promptly received treatment at the airport’s arrival
gate.
As to this second theory, Southwest asserted that any delay in
treatment would be relevant only if its employees could be blamed for the
delay. However, because the court had ruled that Southwest was immune
from civil liability for conduct occurring after Phase 1—including the decision
to have law enforcement officers meet the airplane at the arrival gate rather
than paramedics—Southwest maintained that plaintiffs should not be
allowed to pursue their second causation theory. Plaintiffs countered that
they were prepared to present this theory without arguing that law
enforcement caused the delay. They also claimed Southwest had conceded
from the outset that they could present their delay-based theory of causation.
The trial court ruled in favor of Southwest, stating, “[T]he immunity,
once it attaches, attaches. [¶] And the defendants cannot be found civilly
liable. It’s black letter in the statute for any of the subsequent actions that
arose from the report.” The court continued, “And I’m not going to interject
into the record and into the jury’s consideration facts that cannot be
permitted to form the basis for liability on the part of defendants.” With this
background in mind, we turn to our analysis.
C. Section 44941 Immunity
1. The Statute
In 2001, Congress created the Transportation Security Administration
(TSA) “to assess and manage threats against air travel” following the events
of 9/11. (Air Wisconsin Airlines Corp. v. Hoeper (2014) 571 U.S. 237, 241 (Air
Wisconsin).) The Aviation and Transportation Security Act (49 U.S.C.
§ 44901 et seq.; ATSA) was enacted to “shift[] from airlines to the TSA the
responsibility ‘for assessing and investigating possible threats to airline
24
security.’” (Air Wisconsin, at p. 248; see also Baez, supra, 793 F.3d at p. 276
[“Judgment calls about how to act on such reports are the province of the TSA
and other law enforcement officers”].) “To ensure that the TSA would be
informed of potential threats, Congress gave airlines and their employees
immunity against civil liability for reporting suspicious behavior.” (Air
Wisconsin, at p. 241.) The immunity contained in section 44941 was included
in the ATSA “to ensure that air carriers and their employees would not
hesitate to provide the TSA with the information it needed.” (Air Wisconsin,
at pp. 248–249.)
In relevant part, section 44941(a) provides:
“Any air carrier . . . or any employee of an air carrier . . .
who makes a voluntary disclosure of any suspicious transaction
relevant to a possible violation of law or regulation, relating to air
piracy, a threat to aircraft or passenger safety, or terrorism . . . to
any . . . Federal, State, or local law enforcement officer, or any
airport or airline security officer shall not be civilly liable to any
person under any law or regulation of the United States, any
constitution, law, or regulation of any State or political
subdivision of any State, for such disclosure.”
This immunity is lost only if the disclosure is made with “actual knowledge
that the disclosure was false, inaccurate, or misleading,” or made with
“reckless disregard” as to the truth or falsity of the disclosure. (49 U.S.C.
§ 44941(b) (section 44941(b).)
2. Plaintiffs’ Contentions
Plaintiffs contend that the plain language of section 44941 limits the
grant of immunity to torts that arise solely from the verbal statements that
are used to disclose security threats, and not to torts arising from the conduct
that follows from such disclosures. They emphasize that the statute confers
immunity on those who make a “voluntary disclosure” of a security threat by
providing that such persons may not be held “civilly liable . . . for such
25
disclosure.” From this language, they reason that the immunity extends only
to claims where the disclosure itself is the tortious act giving rise to liability,
and not to claims arising from ancillary tortious conduct even where such
conduct is “coincident with a disclosure.”
Specifically, plaintiffs assert that section 44941’s immunity “does not
extend to the manner in which Flight Attendants are required to identify
medical emergencies and provide medical aid, even where such identification
results in a disclosure of suspicious activity. In other words, . . . liability
arising from a negligent identification of a medical emergency and failure to
provide aid is not liability arising from a ‘voluntary disclosure’ of suspicious
activities.” To interpret the statute otherwise, they claim, “would be to
impermissibly read Section 44941 beyond the clear limitation imposed by the
phrase ‘for such disclosure.’ ” These contentions require us to construe
section 44941.
3. Principles of Statutory Interpretation
“The rules governing statutory construction are well settled. We begin
with the fundamental premise that the objective of statutory interpretation is
to ascertain and effectuate legislative intent. [Citations.] ‘In determining
intent, we look first to the language of the statute, giving effect to its “plain
meaning.” ’ [Citations.] . . . Where the words of the statute are clear, we
may not add to or alter them to accomplish a purpose that does not appear on
the face of the statute or from its legislative history.” (Burden v. Snowden
(1992) 2 Cal.4th 556, 562.) “[I]f the statutory language permits more than
one reasonable interpretation, courts may consider various extrinsic aids,
including the purpose of the statute, the evils to be remedied, the legislative
history, public policy, and the statutory scheme encompassing the statute.
[Citation.] In the end, we ‘ “must select the construction that comports most
26
closely with the apparent intent of the Legislature, with a view to promoting
rather than defeating the general purpose of the statute, and avoid an
interpretation that would lead to absurd consequences.” ’ ” (Torres v.
Parkhouse Tire Service, Inc. (2001) 26 Cal.4th 995, 1003.)
4. Section 44941 Analyzed in Air Wisconsin
Section 44941 must be construed to promote the intent of Congress.
(See Kimmel v. Goland (1990) 51 Cal.3d 202, 208 [“Our analysis starts from
the fundamental premise that the objective of statutory interpretation is to
ascertain and effectuate legislative intent.”].) As plaintiffs note, the
legislative history of section 44941 does not offer much insight into the
intended scope of its applicability.16 While the precise issue here appears to
be one of first impression, several courts have interpreted section 44941 in
other factual contexts, including the United States Supreme Court.
The high court considered section 44941 in Air Wisconsin, supra,
571 U.S. 237. That case concerned statements uttered by airline personnel
who reported to TSA agents that a disgruntled, recently terminated pilot had
boarded a flight. (Id. at pp. 241–244.) The airline supervisor who spoke to
TSA said that the plaintiff, who was authorized to carry a firearm on an
airplane, might have been armed and that the airline was “ ‘concerned about
his mental stability and the whereabouts of his firearm.’ ” (Id. at p. 244.) He
described the plaintiff as “an ‘[u]nstable pilot’ ” who had just been
terminated. (Ibid.) In reality, the plaintiff had engaged in a single emotional
outburst after failing his final opportunity to pass a required flight simulator
“[T]he legislative history does not provide guidance as to the type of
16
immunity intended by Congress. No prior versions of the bill exist, and
Congress engaged in no discussion of the immunity standard.” (Air
Wisconsin Airlines Corp. v. Hoeper (2012 Colo.) 320 P.3d 830, 837, reversed
and remanded in Air Wisconsin, supra, 571 U.S. 237.)
27
test and had not yet been terminated. (Id. at p. 242.) The TSA responded to
the call by ordering the plane to return to the departure gate where they
removed the plaintiff, searched him, and questioned him about the location of
his gun. (Id. at p. 244.) He informed the officers that his gun was at his
house. After the gun was located, he was allowed to board a later flight.
(Ibid.)
The plaintiff subsequently sued the airline in Colorado state court for
defamation. (Air Wisconsin, supra, 571 U.S. at p. 244.) The issue of the
exception to immunity for false statements under section 44941(b) was
submitted to the jury, however, the jury instructions did not clarify that the
immunity protects materially true statements. (Air Wisconsin, at pp. 244–
245.) The jury ruled in favor of the plaintiff and he was awarded more than
$1 million in damages. (Id. at p. 245.)
The judgment was affirmed by the Colorado Supreme Court. (Air
Wisconsin Airlines Corp. v. Hoeper, supra, 320 P.3d 830, reversed and
remanded in Air Wisconsin, supra, 571 U.S. 237.) In its ruling, the Colorado
high court held that the issue of immunity was a question of law for the trial
court and should not have been submitted to the jury. (320 P.3d at p. 837.)
However, the court affirmed the judgment after finding that the airline
supervisor had acted with reckless disregard as to the truth or falsity of his
statements by grossly overstating the facts to the TSA agent. (Id. at pp. 838,
842.) In doing so, as the United States Supreme Court later observed, the
court appeared to assume that “even true statements do not qualify for ATSA
immunity if they are made recklessly.” (Air Wisconsin, 571 U.S. at pp. 245–
246.)
The United States Supreme Court in Air Wisconsin focused on whether
immunity under section 44941(b) can be denied without a determination that
28
a disclosure was “ ‘made with reckless disregard as to the truth or falsity of
that disclosure’ ” or was actually materially false. (Air Wisconsin, supra,571 U.S. at pp. 246–250.) The court observed that “Congress patterned the
exception to ATSA immunity after the actual malice standard of New York
Times Co. v. Sullivan [(1964) 376 U.S. 254], and we have long held that
actual malice requires material falsity. Because we presume that Congress
meant to incorporate the settled meaning of actual malice when it
incorporated the language of that standard, we hold that a statement
otherwise eligible for ATSA immunity may not be denied immunity unless
the statement is materially false.” (Id. at pp. 246–247.) Because the
Colorado state courts had “made no such determination, and because any
falsehood in the disclosure here would not have affected a reasonable security
officer’s assessment of the supposed threat, we reverse the judgment of the
Colorado Supreme Court.” (Id. at p. 241.)
The Air Wisconsin court had no occasion to address whether ATSA
immunity extends to conduct arising from the disclosure of a security threat.
However, the opinion offers insight into the purpose of ATSA immunity. The
high court explained that “[i]n directing the TSA to ‘receive, assess, and
distribute intelligence information related to transportation security,’
[citation], Congress wanted to ensure that air carriers and their employees
would not hesitate to provide the TSA with the information it needed. This is
the purpose of the immunity provision, evident both from its context and
from the title of the statutory section that contained it: ‘encouraging airline
employees to report suspicious activities.’ [Citation.] It would defeat this
purpose to deny immunity for substantially true reports, on the theory that
the person making the report had not yet gathered enough information to be
certain of its truth. Such a rule would restore the pre-ATSA state of affairs,
29
in which air carriers bore the responsibility to investigate and verify
potential threats.” (Air Wisconsin, supra, 571 U.S. at pp. 248–249.)
5. Section 44941 Immunity Is Not Limited to Disclosures
Citing to section 44941(b) and the Air Wisconsin court’s references to
the New York Times17 malice standard, plaintiffs argue that the statute
“demonstrates a legislative intent to have its immunity targeted at civil
liability analogous to defamation. Thus, the operative, liability-creating
conduct for which Section 44941 is intended to provide immunity is the
voluntary disclosure itself, not civil liability for which the disclosure is merely
incidental or ancillary.” We are not persuaded.
While the Air Wisconsin court discussed the New York Times malice
standard, the high court did not suggest that section 44941 immunity is
limited to defamation or other reputation-based torts. The court merely
noted that in the context of section 44941, “a materially false statement is
one that ‘ “would have a different effect on the mind of the [listener] from that
which the . . . truth would have produced.” ’ ” (Air Wisconsin, supra, 571 U.S.
at p. 250.) The “listener” in this case is a reasonable security officer, not a
member of the general public. (Id. at p. 251.) Thus, in this context, a
passenger’s reputation is essentially irrelevant, as here “we care whether a
falsehood affects the authorities’ perception of, and response to, a given
threat.” (Id. at pp. 250–251.)
Plaintiffs rely on Gonzalez v. Paradise Valley Hospital (2003)
111 Cal.App.4th 735, 741 (Gonzalez) to support their interpretation of
section 44941. In Gonzalez, the plaintiffs sued a hospital and physicians
after their son was killed by police officers following his escape from the
17 New York Times Co. v. Sullivan, supra, 376 U.S. 254 (New York
Times).
30
hospital’s psychiatric unit during an involuntary 72-hour hold. The trial
court granted summary judgment to the defendants after determining that
Welfare and Institutions Code section 5278 immunized them from liability for
any negligence occurring during a 72-hour hold. (Gonzalez, at pp. 738, 739.)
The appellate court reversed. (Id. at p. 737.)
The statute conferring immunity in Gonzalez provided, in relevant
part: “Individuals authorized under this part to detain a person for 72-hour
treatment and evaluation . . . shall not be held either criminally or civilly
liable for exercising this authority in accordance with the law.” (Welf. & Inst.
Code, § 5278, italics added.) The defendants argued that any negligent
conduct committed during a legal 72-hour hold fell within the scope of this
immunity. (Gonzalez, supra, 111 Cal.App.4th at p. 740.) The appellate court
disagreed, concluding that the immunity was limited to the conduct used to
effectuate the detention. (Id. at pp. 741–742.)
The Gonzalez court reasoned that the Legislature intended to restrict
the immunity to the detention because “ ‘[w]ithout the immunity provided by
[Welfare and Institutions Code] section 5278, an involuntary detention and
treatment without consent would arguably constitute kidnapping, false
imprisonment, or battery.’ ” (Gonzalez, supra, 111 Cal.App.4th at p. 741.)
The court explained that “[t]he protected conduct is confined to the exercise of
statutory authority to detain, evaluate and treat against the patient’s wishes,
and does not extend to the manner in which evaluation and treatment are
carried out. In other words, liability arising from negligent evaluation or
treatment is not liability arising from the ‘exercis[e of] this authority in
accordance with the law.’ ” (Id. at pp. 741–742.) The court observed that
“[t]he interpretation of [Welfare and Institutions Code] section 5278 the
defendants urge is contrary to its language, and would undermine a purpose
31
of the Legislature in enacting the [Lanterman-Petris-Short] Act, protection of
mentally ill persons.” (Id. at p. 742.)
Using the Gonzalez reasoning, plaintiffs argue that “liability arising
from a negligent identification of a medical emergency and failure to provide
aid is not liability arising from a ‘voluntary disclosure’ of suspicious
activities.” In their view, Congress intended “to limit the immunity to only
that civil liability arising from a qualifying voluntary disclosure,” rather than
providing a “blanket immunity” for all conduct occurring after such a
disclosure. They urge that had Congress intended to provide a blanket
immunity it could have done so by, among other alternatives, excluding the
qualifier “for such disclosure” from the statute. We conclude that
section 44941’s immunity is not as narrow as plaintiffs suggest.
Section 44941’s immunity is distinguishable from the immunity
discussed in Gonzales. In Gonzales, the appellate court’s interpretation was
consistent with the legislative intent to protect mentally ill persons by
allowing hospitals to involuntarily restrain them when they present a danger
to themselves or others. That appellate court’s decision to limit the immunity
to the act of detention was consistent with that legislative intent. A health
care provider’s conduct towards a patient following an involuntary detention
is not controlled by the detention. Once the detention is accomplished, the
resulting hold provides the context in which professional negligence may or
may not occur. But in the present case, the consequences of disclosing a
security threat cannot be so easily separated from the disclosure itself.
The ATSA grants immunity to private air carriers to encourage their
employees to act on issues of public importance, such as avoiding air piracy
and threats to national security, without fear of consequences, even if their
actions turn out to have been based on mistaken assumptions. The text of
32
the ATSA itself makes clear there is immunity for reporting “any suspicious
transaction relevant to a possible violation of law or regulation, relating to air
piracy, a threat to aircraft or passenger safety, or terrorism.” (49 U.S.C.
§ 44941(a).) The legislators who enacted the ATSA undoubtedly believed that
“the safety and security of the civil air transportation system is critical to the
security of the United States and its national defense.” (H.R. Rep. No. 107-
296, 1st Sess., p. 53 (2001).)
As the Air Wisconsin court stated, “The ATSA shifted from airlines to
the TSA the responsibility ‘for assessing and investigating possible threats to
airline security.’ ” (Air Wisconsin, supra, 571 U.S. at p. 248.) Under
section 44941, airline employees are relieved of the responsibility of
confirming whether an actual threat exists in order to “encourage air carriers
and their employees, often in fast-moving situations and with little time to
fine-tune their diction, to provide the TSA immediately with information
about potential threats.” (Air Wisconsin, at p. 253.)
The importance of this immunity cannot be overstated. Air carriers
and their employees are ideally positioned to provide timely, useful threat
information to TSA agents because they directly interact with each
passenger. Considering the importance of the threat disclosure encouraged
by the ATSA, and the unique position of air carriers to obtain information
about those threats, we conclude that Congress intended to confer upon air
carriers the greatest possible degree of protection by enacting section 44941.
We also observe that section 44941 provides that airline employees who make
a “voluntary disclosure of any suspicious transaction . . . shall not be civilly
liable to any person under any law . . . for such disclosure.” (49 U.S.C.
§ 44941(a), italics added.) On its face, the statute does not limit the
33
immunity’s scope to claims that may arise from inappropriate disclosures,
such as defamation or slander.
We conclude that the immunity under section 44941 may be extended
to the conduct that arises from security threat disclosures. As the trial court
here observed, limiting this important immunity to a disclosure only, and
denying immunity to the conduct that flows from the disclosure, would defeat
the purpose of the immunity and render it essentially meaningless. The
limitation that plaintiffs seek to place on the immunity turns the TSA’s
“ ‘ “when in doubt, report” ’ ”18 policy on its head. By its very nature, a report
of a suspicious incident to the TSA—like the report at issue in this case—is a
tentative assessment of an evolving situation based on imperfect information.
“Baggage handlers, flight attendants, gate agents, and other airline
employees who report suspicious behavior to the TSA should not face
financial ruin if, in the heat of a potential threat, they fail to choose their
words with exacting care.”19 (Air Wisconsin, supra, 571 U.S. at pp. 253–254.)
We also note that airlines and their employees have an obligation to
report potential threats or risk being subject to civil penalties. (See 49 U.S.C.
§§ 44905(a), 46301(a)(1)(A).) If airlines and their employees understand that
they face liability in this context, they will be forced to “gather[] enough
18 See Baez, supra, 793 F.3d at page 276.
19 Evidence was offered at trial showing that once a security threat is
declared, flight crews are required to follow federally mandated safety
protocols, which we will not describe here because they are confidential and
contained in the sealed record. These protocols resulted in Ilczyszyn being
left alone in the lavatory without medical attention during the final stages of
the flight. Assuming that disclosing a threat is made in good faith, subjecting
an airline and its employees to potential liability for following mandatory
federal safety protocols would be contrary to the goal of ensuring public
safety.
34
information to be certain of [a statement’s] truth” before making a security
report. (See Air Wisconsin, supra, 571 U.S. at p. 249.) This would “restore
the pre-ATSA state of affairs, in which air carriers bore the responsibility to
investigate and verify potential threats.” (Ibid.)
Baez, supra, 793 F.3d 269, which the trial court cited to in its ruling on
motion in limine No. 4, further supports the conclusion that section 44941
immunity does not attach solely to claims that arise from communication-
based torts. In Baez, the plaintiff timely checked her luggage in for a flight
but appeared at the gate for the flight only minutes before its scheduled
departure. (Baez, at p. 272.) The gate agent informed her that the airplane’s
door was closed and that she could not board the flight, to which the plaintiff
replied, “ ‘Isn’t it a security risk to let a bag go on a plane without a
passenger, what if there was a bomb in the bag?’ ” She also disparaged the
effectiveness of the TSA. (Ibid.) The gate agent alerted her supervisor, and
the airline contacted security personnel, the TSA, and the FBI. (Id. at
pp. 272–273.) Security personnel detained and questioned the plaintiff, and
she was then questioned at length by law enforcement agents. As a security
measure, the airline and law enforcement decided to reroute the airplane
carrying the plaintiff’s luggage. After landing, security officers searched her
luggage and found no bomb. She was ultimately charged with making a false
bomb threat. (Id. at p. 273.) She later brought various state law claims
against the airline and the gate agent, including claims for false arrest and
intentional infliction of emotional distress. The district court granted
summary judgment to the defendants as to all causes of action based on
ATSA immunity. (Baez, at pp. 271–272.)
The Second Circuit affirmed, agreeing with the district court’s
observation that “a passenger who speculates aloud about whether there is a
35
bomb in her luggage cannot be heard to complain when an airline
representative reports the use of those words, even if the passenger’s precise
words are misrepresented.” (Baez, supra, 793 F.3d at p. 276.) The appellate
court noted that there were discrepancies between the statements that the
plaintiff conceded she had made and the statements the gate agent allegedly
reported to law enforcement officials. However, the court concluded that the
differences were “ ‘immaterial’ ” for purposes of ATSA immunity, noting that
“since [the plaintiff’s] luggage was indisputably a checked bag
unaccompanied by its owner, ‘a reasonable [law enforcement] officer . . .
would have wanted to investigate.’ ” (Baez, at p. 275.) The court concluded
that the defendants were entitled to ATSA immunity, as “no reasonable jury
could find that differences in wording” in the accounts “constituted materially
false statements made to law enforcement.” (Baez, at p. 276.)
Plaintiffs challenge the trial court’s reliance on Baez, reasoning that
the case merely holds “that claims arising from the disclosure of statements
made by the passenger were only subject to Section 44941’s immunity in the
first place if the voluntary disclosure caused law enforcement to respond,
resulting in harm—i.e., the disclosure was the operative act at the heart of
the claim.” We do not view the case so narrowly.
The Baez court observed that the “adverse consequences to [the
plaintiff] flowed from the decisions made by such law enforcement officers.”
(Baez, supra, 793 F.3d at p. 276, italics added.) We can infer that these
“adverse consequences” were not based solely on the statements themselves,
as the defendants were held to be immune not just from the plaintiff’s claim
for defamation, but also for her claims for negligent employment, false arrest,
and intentional infliction of emotional distress. (Id. at p. 273). These causes
of action did not arise from the statements themselves, but were based on the
36
actions taken in response to the gate agent’s report of a security threat.
Thus, Baez supports a broader interpretation of section 44941 than what
plaintiffs advocate. In sum, under the facts at issue here, we conclude that
the trial court did not err in ruling that ATSA immunity attaches to conduct
that arises from a disclosure of a security threat.
6. Other Federal Cases Addressing Section 44941
In support of their argument that the immunity for reporting
suspicious activities “specifically applies to the disclosure of suspicious
activities, not the actions taken pursuant thereto’ ” (bold and italics omitted),
plaintiffs cite several federal district court cases, Bayaa v. United Airlines,
Inc. (C.D.Cal. 2002) 249 F.Supp.2d 1198 (Bayaa), Dasrath v. Continental
Airlines, Inc. (D.N.J. 2002) 228 F.Supp.2d 531 (Dasrath), Shqeirat v. U.S.
Airways Group, Inc. (D.Minn. 2007) 515 F.Supp.2d 984 (Shqeirat), and
Bandary v. Delta Air Lines, Inc. (C.D.Cal., Oct. 11, 2019, No. EDCV-17-
1065DSF (ASx)) 2019 U.S.Dist. Lexis 232295 (Bandary). They assert that
these opinions “uniformly hold that Section 44941 [neither] bars civil liability
for the acts of air carriers and their employees which are independent of a
disclosure, nor bars civil liability for independent injurious conduct merely
because it arises after a disclosure.” Southwest counters that plaintiffs rely
on dictum from the first three cases, all of which are distinguishable in that
they involve claims of intentional racial discrimination and predate Air
Wisconsin. Southwest also claims that Bandary contradicts plaintiffs’
position. Southwest has the better argument.
In Bayaa, the plaintiff alleged a claim for unlawful discrimination
stemming from an incident in which he was removed from an airplane after
the crew allegedly became uncomfortable for no discernable reason except
that he was an Arab-American. (Bayaa, supra, 249 F.Supp.2d at p. 1200.)
37
Thereafter, he filed a civil rights action (ibid.) asking the district court to
declare illegal the airline’s “alleged pattern and practice of removing
individuals from flights based on perceived Middle Eastern ethnicity, and to
enjoin [the airline] from engaging in this conduct in the future.” (Id. at
p. 1205.) The airline filed a motion to dismiss for failure to state a claim. (Id.
at p. 1200.) In part, the airline argued that an order requiring it to comply
with the civil rights laws would conflict with its duty to deplane passengers
under 49 United States Code section 44902, which allows airlines to exercise
their discretion to refrain from transporting passengers that they decide
might be “inimical to safety.” (49 U.S.C. § 44902(b).) It also argued
compliance would conflict with the immunity under section 44941. (Bayaa,
at p. 1205.) The district court dismissed the first argument, stating that the
airline’s duty under 49 United States Code section 44902 “does not grant
them a license to discriminate.” (Bayaa, at p. 1205.) In dicta, and without
any analysis, the court also wrote that section 44941 immunity “specifically
applies to the disclosure of suspicious activities, not the actions taken
pursuant thereto.” (Bayaa, at p. 1205.)
Similarly, in Dasrath, supra, 228 F.Supp.2d 531, passengers alleged
claims for unlawful racial discrimination against an airline after being
ejected from a flight. (Id. at p. 533.) The airline filed a motion to dismiss,
arguing that it was entitled to immunity under 49 United States Code
sections 44902 and 44941. (Dasrath, at p. 537.) Like the court in Bayaa, the
Dasrath court held that the plaintiffs had sufficiently alleged their removal
was a product of “intentional racial discrimination,” and “not the sort of
rational safety measure shielded by [section] 44902.” (Dasrath, at pp. 539–
540.) The Dasrath court also rejected the airline’s invocation of section 44941
immunity, concluding that the argument “appears not to have any relevance
38
to the asserted claims and accordingly does not provide any basis for
dismissing them.” (Dasrath, at p. 537.)
As in the Bayaa decision, the court in Dasrath engaged in a limited
analysis of section 44941: “By its terms the law provides shelter not to
actions taken on the basis of disclosures but rather to the disclosures
themselves. Such immunity as the statute provides accordingly does not
reach the conduct on which [the] [p]laintiffs predicate their claims. As the
complaints themselves indicate, and as [the] [p]laintiffs’ opposition papers
confirm, [the] [p]laintiffs base their claims on the ultimate decision to remove
[them] from [the flight], and on an alleged pattern of similar actions, not on
any communications that might have been incidental to such actions.
Section 44941 is therefore irrelevant to the asserted causes of action.”
(Dasrath, supra, 228 F.Supp.2d at p. 538.)
Shqeirat, supra, 515 F.Supp.2d 984 involved Muslim passengers who
brought multiple claims, including a claim for false arrest, against an airline
and a police department after they were removed from an airplane. (Id. at
pp. 990–991.) In its summary judgment motion, the airline asserted that it
was entitled to immunity from the claim for false arrest under section 44941.
(Shqeirat, at p. 1000.) The district court held that the statute protected the
airline employees’ disclosures to the police department. (Ibid.) However, the
court noted the plaintiffs had alleged “that in addition to disclosing
information to [the police officers], [the airline] acted in concert with [the
police department] to arrest [the] [p]laintiffs. [The] [p]laintiffs specifically
allege that immediately after they were handcuffed and placed under arrest,
a [police officer] stated: ‘This is the airline’s call and not our call.’ ” (Ibid.)
Without any analysis, the district court summarily concluded that the
39
“[p]laintiffs’ false arrest claim alleges conduct by [the airline] that falls
outside the protection of [section] 44941(a).” (Ibid.)
In Bandary, the district court reached a different conclusion. The case
involved a confrontation between a passenger and the flight crew which led to
the passenger’s arrest and criminal prosecution. (See Bandary v. Delta Air
Lines, Inc. (C.D.Cal. Mar. 5, 2019, No. EDCV 17-1065 DSF (ASx)) 2019
U.S.Dist. Lexis 78002, at pp. *1–*4.) In ruling on motions in limine
regarding the airline’s “potential liability for the actions of law enforcement
both during disembarkment and in a later criminal prosecution of [the
plaintiff],” the court described the parties’ dispute as follows: “[The]
[d]efendant would apply a broad immunity for any harm that might have
been suffered stemming from the report to law enforcement. [The] [p]laintiff
would apply a narrow immunity that apparently would only apply to harms
arising directly out of the report itself—presumably such things as slander or
malicious prosecution. The Court finds that the language and purpose of
[section] 44941(a) support the application of broad immunity. Implicit in
immunity for making reports to law enforcement is immunity from liability
for whatever law enforcement might do with those reports. Otherwise,
immunity would be largely meaningless. The purpose of [section] 44941(a) is
to encourage reports to law enforcement. That purpose would clearly be
undercut if airlines and airline personnel would be potentially liable for the
independent actions of law enforcement after a report was made.” (Bandary,
supra, 2019 U.S.Dist. Lexis 232295 at pp. *3, *6–*7.)
Plaintiffs assert that the four district court decisions above “uniformly
hold” that section 44941 does not bar civil liability for acts that are
independent of a disclosure, or that arise after a disclosure. However, none of
the three cases plaintiffs principally rely on—Bayaa, Dasrath, and Shqeirat—
40
are persuasive as none of the opinions contains a reasoned analysis. We
therefore decline to follow them. In our view, the Bandary case contains the
most reasoned analysis, and that analysis actually runs counter to plaintiffs’
contentions.
In sum, based on our analysis of applicable law in the context of the
facts presented here, we hold that the trial court did not err in applying
section 44941 immunity to the conduct of the flight crew following the crew’s
determination that Ilczyszyn posed a security threat to the aircraft and
passengers of Flight 4640.20
D. The Trial Court’s Ruling Was Not a “Blanket Exclusion”
Plaintiffs next argue that the trial court misapplied the section 44941
immunity and abused its discretion by improperly excluding “all”
postdisclosure evidence, including evidence of causation. They contend that
the “categorical exclusion of all or almost all causation evidence caused
prejudice per se.” As an example, they note that the airplane continued
flying for approximately 20 minutes after Phase 1, with an additional four
minutes spent taxiing to a gate. They maintain that during this time there
was no evidence that anyone in the plane received directions or instruction
from law enforcement or security personnel. On that basis, they claim the
actions taken by the flight crew were both admissible and relevant to
20 Plaintiffs assert that the trial court’s interpretation of section 44941
creates an absurd result. They argue that a blanket immunity for all acts or
omissions following a security-threat disclosure essentially immunizes an
airline from all duties owed to a passenger, and would have immunized
Southwest from liability if the flight attendants had accessed the lavatory
and physically assaulted Ilczyszyn after the threat was reported. Thankfully,
such facts are not before us and we need not speculate as to whether
immunity would attach under such a scenario.
41
establish causation and liability. For several reasons, we find no abuse of
discretion.
First, as we have already determined, the trial court did not err in
ruling that section 44941 immunity applies not just to the disclosure of a
security threat, but also to conduct occurring in conjunction with the
disclosure. This ruling did doom plaintiffs’ second causation theory; namely,
that Ilczyszyn would have survived had the airplane been met by medical
personnel upon arrival rather than by law enforcement. However, as the
court correctly determined, the delay in treatment was inextricably entwined
with the flight crew’s report of the security threat and the sheriff’s deputies’
decision to deplane the aircraft. As such, plaintiffs’ second causation theory
ran afoul of the section 44941 immunity.
Second, even if the flight crew received no directions from security or
law enforcement during the 24 minutes that it took for the airplane to arrive
at the gate, the crew was required to follow TSA-mandated security protocols.
Nothing in the record suggests that the flight crew had the discretion to
ignore these protocols. The crew was, in effect, operating under the direction
of law enforcement at all times after Phase 1.
More fundamentally, however, our review of the record shows that the
trial court did not extend a “blanket exclusion” as to all evidence following
Phase 1. The trial court allowed plaintiffs to introduce evidence regarding
the events that transpired after Phase 1 to support their first theory of
causation. For example, they were allowed to show the jury that medical
personnel were able to stabilize Ilczyszyn’s oxygen levels and cardiac
rhythms after the airplane landed. Information from the medical records
prepared by first responders and the hospital were also used to support
plaintiffs’ medical experts’ testimony that he could have been saved had
42
lifesaving measures been provided during Phase 1. Plaintiffs were also
allowed to show that the same medical interventions that paramedics used to
revive Ilczyszyn on the ground were available on the airplane, including CPR,
oxygen, and a defibrillator.
Plaintiffs’ other arguments fare no better. They assert that they were
precluded from presenting evidence to the jury that the lifesaving measures
available during Phase 1 “could have also been taken throughout the period
of time following the [security threat disclosure], and that these measures
also would have potentially delayed or prevented [Ilczyszyn’s] cardiac arrest.”
However, it was essentially undisputed that, but for the security lockdown,
any medical assistance started by the flight crew would have continued until
landing. Under their theory of negligence, a security threat should never
have been declared and Ilczyszyn would have been provided continuing
emergency medical care.
Plaintiffs also complain that they were barred from introducing
evidence of negligence by the flight attendants as to their “ongoing duty to
keep the Pilots informed.” They emphasize that the pilots were never told
that the passenger in the lavatory was slumped over in the lavatory crying,
and thus Captain Walker never had the opportunity to evaluate the situation
as a medical emergency. Yet plaintiffs succeeded in convincing the jury that
the flight crew was negligent even without this evidence.
Finally, plaintiffs contend that the court essentially contradicted itself
by improperly allowing Southwest to use the immunity as both a sword and a
shield, allegedly giving Southwest the opportunity “to lay the evidentiary
groundwork for breaking the causal chain between any negligence the jury
found from prior to the communication between Klotz and Walker, and
[Ilczyszyn’s] cardiac arrest and death which occurred thereafter.” But the
43
evidence that Southwest was allowed to introduce had nothing to do with
medical causation. Rather, the trial court explained that the evidence was
relevant because plaintiffs had attacked the flight attendants’ credibility by
suggesting that they had “concocted this whole thing sometime after they left
the plane or maybe while they were in the plane.” It appears that the court
was thus constrained to allow Southwest the chance “to present evidence of
what transpired before the flight attendants left the plane, while they were
still in temporary detention, to rehabilitate or respond to plaintiffs’ attack on
[their] credibility.” In sum, we find no abuse of discretion in the trial court’s
evidentiary rulings.
E. Jury Instructions
1. Standard of Review
Plaintiffs next argue that the trial court’s special jury instruction on
section 44941 immunity “legally and logically barred the jury” from linking
Southwest’s negligence to Ilczyszyn’s cardiac arrest. We disagree.
As noted above, “[t]he legal adequacy of jury instructions is a legal
issue subject to the de novo standard of appellate review.” (Isip, supra,
155 Cal.App.4th at p. 24.) The appellate court independently reviews a claim
of instructional error by the trial court, “ ‘viewing the evidence in the light
most favorable to the appellant.’ ” (Uriell v. Regents of University of
California (2015) 234 Cal.App.4th 735, 743.) The prejudicial error standard
applies “when the jury receives an improper instruction in a civil case,
prejudice will generally be found only ‘ “[w]here it seems probable that the
jury’s verdict may have been based on the erroneous instruction . . . .” ’ ”
(Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574.)
44
2. Additional Background
Following general instructions on negligence principles and causation,
the trial court gave the jury the following special instruction which plaintiffs
assert “woefully misstated the law”:
“You have heard testimony during the trial about
communications between Captain Walker and the flight
attendants that completed the period of time referred to in this
trial as phase one of the events in this case. The Court has
concluded that, under the law that governs this case, these
communications between the flight attendants and Captain
Walker, including the contents of these communications, are
irrelevant to your determinations in this case. You are not to
speculate about the contents of these communications for any
purpose.
“Under the law that governs this case, Southwest Airlines
cannot be held liable based on these communications between the
flight attendants and Captain Walker, nor based upon the
content of these communications, nor based upon the
consequences that followed from these communications, including
subsequent decisions made by the first responders on the ground,
the ambulance services provided, or the services provided at
Hoag Memorial Hospital.
“In determining whether or not Southwest Airlines is
liable, you may consider only the events during the time period
from the flight attendants’ first awareness of a passenger’s
presence in the lavatory until the flight attendants commenced
communications with Captain Walker. That is the relevant time
frame.
“In assessing whether Southwest Airlines is liable, you may
not consider any act, omission, or consequence that followed from
flight attendant Klotz’s communication to Captain Walker,
including subsequent decisions made by first responders on the
ground, ambulance services provided, or services provided at
Hoag Memorial Hospital, where Mr. Ilczyszyn was taken.
45
“After flight attendant Klotz made her communication to
Captain Walker and then, in turn, law enforcement was notified,
the decisions of what would happen to Mr. Ilczyszyn, including
whether or not he would receive medical treatment, when he
would receive medical treatment, and what medical treatment, if
any, he would receive, was made by the first responders on the
ground, the folks who provided ambulance services, and the
medical staff at Hoag Memorial Hospital.
“Because Southwest Airlines had no control over the
decisions made by those folks, you cannot hold Southwest
Airlines liable for those subsequent decisions.
“However, you may consider the actions of the first
responders, the ambulance service personnel, and the medical
personnel at Hoag Memorial Hospital solely for the purpose of
determining whether or not Mr. Ilczyszyn could have survived his
pulmonary embolism if the flight attendants had provided basic
aid and oxygen to Mr. Ilczyszyn before flight attendant Klotz
communicated with Captain Walker.”21
3. Analysis
As a threshold matter, Southwest asserts that plaintiffs forfeited any
challenge to the instruction because, although they objected to the giving of a
limiting instruction, they helped refine the one that was read to the jury. We
find no waiver. Plaintiffs had already unsuccessfully challenged the court’s
interpretation and application of section 44941, and the fact that they offered
comments and edits to the immunity instruction that was given does not
forfeit their initial objection and their right to challenge the instruction on
appeal. (See Mundy v. Lenc (2012) 203 Cal.App.4th 1401, 1406 [“a party need
not object if it would be futile”].)
21 At several points during the trial, the trial court gave the jury
admonitions containing aspects of this instruction. We confine our analysis
to the special instruction quoted above as plaintiffs do not raise any separate
challenges to the court’s admonitions.
46
Plaintiffs complain that the special instruction effectively prevented
them “from ever being able to prove that any negligent act occurring before
the communication between Klotz and Walker caused [Ilczyszyn’s] death”
and “foreclosed the possibility of [Southwest’s] liability in this case.” They
argue that because Ilczyszyn’s heart “did not stop beating until the plane was
landing, some 20 minutes after the Flight Attendants communicated with the
pilots, the jury was unequivocally instructed that [Southwest] could not be
liable for any act or omission taken by the flight attendants during this 20
minute period. In effect, in both law and logic, there was no way for the jury
to causally link any negligent act to [Ilczyszyn’s] death.”
Plaintiffs direct us to paragraphs 5 and 6 of the jury instruction, which
state that Southwest could not be held liable for any medical care that
Ilczyszyn did or did not receive after the conversation between Klotz and
Walker. They contend that under the instruction, “responsibility for making
the decision to provide medical care . . . [was] cut off 25 minutes before the
plane landed and [Ilczyszyn] went into cardiac arrest.” They explain the
instruction told the jury that, “whether to give oxygen and IV fluids during
this 25 minute period was conclusively a decision made by first responders,
for which [Southwest was] conclusively not liable.” They claim that “[i]n
effect, the court told the jury that the communication . . . between Klotz and
Walker acted as a kind of conclusive superseding and intervening act that cut
off liability for any negligence occurring prior to the communication,
assigning it instead to first responders, and medical staff at Hoag Memorial
Hospital. Thus, because [Ilczyszyn] did not go into cardiac arrest until after
the communication, which occurred after the decisions about what would
happen to [him] were taken over by first responders as a matter of law,
[Southwest] could not be held liable for those subsequent decisions.”
47
Plaintiffs claim that the instruction thereby “foreclose[d] the possibility of
assigning liability for [his death] on [Southwest].”
Plaintiffs’ arguments are not convincing. The jury was never told to
assume that any treatment initiated by the flight attendants would have
stopped after Phase 1. Nor was it instructed to disregard evidence that the
flight attendants could potentially have continued providing treatment for
the duration of the flight. Indeed, under plaintiffs’ theory of the case, had
Ilczyszyn been removed from the lavatory and been treated, there would have
been no report of a potential security threat in the first place. Because the
communication between Klotz and Walker would never have occurred, it
could not have constituted a superseding cause. We also note that plaintiffs
did not contend below that the jury instruction would prevent them from
linking Ilczyszyn’s death to Southwest’s negligence under their first theory of
causation.
In any event, the final paragraph of the instruction expressly allowed
the jury to consider post-Phase 1 events in the context of causation, that is, in
determining whether Ilczyszyn could have survived if the flight attendants
had timely responded to his medical emergency. While the instruction did
restrict the jury from finding negligence based on any actions taken after
Phase 1, including the actions of law enforcement and first responders, it
expressly carved out an exception for evidence of causation as it pertained to
any negligence occurring during Phase 1.22 We find no error.
22Plaintiffs assert that the jury must have been struggling with this
instruction because they sent out a question asking whether any damages
were required to be paid by law. They assert that this question shows that
the jury was “attempting to find a way to award damages for [Southwest’s]
negligence in spite of being legally and logically unable to find the element of
causation.” The assertion is speculative. It is just as likely that the jury
48
4. Failure to Instruct on the Section 44941 Immunity
Exception
Plaintiffs assert that the trial court erred in failing to submit the
exception to section 44941 immunity to the jury. The court found there was
no factual basis to support the false utterance exception under section
44941(b) and therefore this exception was not presented to the jury. While
the flight attendants’ statements describing their perceptions of the
purported security threat may have been inaccurate, the court found they
were not “materially false.” Plaintiffs complain the court usurped the jury’s
factfinding function in deciding this issue. We disagree.
For the section 44941(b) exception to apply, plaintiffs would have to
show actual malice and material falsity. Plaintiffs do not seriously try to
show actual malice—i.e., that the flight attendants’ statements that Ilczyszyn
was locked in the lavatory and was refusing to come out were made “ ‘with
knowledge that [they were] false or with reckless disregard of whether [they
were] false or not.’ ”23 (Air Wisconsin, supra, 571 U.S. at p. 247.) Nor do they
convincingly argue that the statements were materially false. We note that
Ilczyszyn was locked in the lavatory and did not respond to the flight
attendants’ requests to open the door. It was also uncontested that his foot
was blocking the door. While the flight attendants did not detail in their
merely sought confirmation that damages are not required where, as here,
there is no causation. The parties agreed at trial that the answer should
simply refer the jury to the causation instructions and jury form.
23 Of course, Ilczyszyn was suffering a horribly tragic medical event and
never posed any threat. While the jury found that the flight attendants were
negligent in managing his emergency before Captain Walker declared a
security threat, neither plaintiffs’ briefing nor the record itself suggests that
the flight crew deliberately falsified any of the information that was passed
on to law enforcement.
49
reports that he was fully clothed and was sitting with his head down, crying,
“ ‘the gist’ ” of their statements was accurate. (Id. at p. 255.) There is no
reason to believe that the jury would have found in favor of plaintiffs had this
issue been submitted to it.
F. The Gravamen of the Action Does Not Fall Outside Section 44941
Plaintiffs assert that the trial court misapplied the section 44941
immunity because their case was not grounded on the disclosure of a threat,
but rather on the flight crew’s negligence in failing to identify Ilczyszyn’s
medical emergency and provide him timely, lifesaving aid. They emphasize
that they brought a single claim for wrongful death based on Southwest’s
negligence in failing to treat Ilczyszyn’s medical emergency, and did not set
forth a cause of action for false or misleading or reckless statements. They
maintain that section 44941 applies only where a voluntary disclosure forms
the basis of the claim being asserted.
Acknowledging that there are no cases on point, plaintiffs cite to cases
construing other statutory immunities, namely, Civil Code section 47 and the
state and federal public entity immunities for negligent misrepresentation:
Government Code section 818.8 and 28 United States Code section 2680. The
facts of these cases bear little, if any, resemblance to the facts before us.
Plaintiffs first cite to two Supreme Court cases construing the litigation
privilege under Civil Code section 47. In Rusheen v. Cohen (2006) 37 Cal.4th
1048 (Rusheen), our high court held that a claim for abuse of process was
barred by the litigation privilege where the action was based on the filing of
allegedly false declarations of service used to obtain a default judgment. (Id.
at p. 1052.) In so ruling, the court stated: “Because the litigation privilege
protects only publications and communications, a ‘threshold issue in
determining the applicability’ of the privilege is whether the defendant’s
conduct was communicative or noncommunicative. [Citation.] The
50
distinction between communicative and noncommunicative conduct hinges on
the gravamen of the action. [Citations.] That is, the key in determining
whether the privilege applies is whether the injury allegedly resulted from an
act that was communicative in its essential nature.” (Id. at p. 1058.)
In Ribas v. Clark (1985) 38 Cal.3d 355 (Ribas), the plaintiff and his
wife, who at the time was not represented by counsel, began divorce
proceedings that ultimately resulted in a court-approved property settlement
agreement. (Id. at p. 365.) After asking her attorney to listen in on an
extension telephone while she spoke to her husband, she filed an action to set
aside the dissolution decree alleging the settlement agreement had been
procured by fraud. At the arbitration hearing, her attorney testified
regarding the phone call. The plaintiff later brought an action against the
wife’s attorney for violation of statutory eavesdropping laws, as well as
claims for common law invasion of privacy and intentional infliction of
emotional distress. The trial court sustained the attorney’s demurrer on the
ground that the attorney was immune from liability pursuant to the litigation
privilege. The Ribas court reversed in part, holding that the husband could
sue the attorney for the statutory civil award, but that his action was barred
insofar as it was based on “his common law right to privacy, because his
alleged injury stems solely from [the] defendant’s testimony at the arbitration
proceeding.” (Id. at p. 364.)
Rusheen and Ribas are distinguishable from the present case. As we
have already discussed, the section 44941 immunity is not limited to acts
that are communicative in nature. We also note that the Rusheen court itself
observed that if “the gravamen” of the action is based on a communicative act
to which the litigation privilege applies, “the litigation privilege extends to
noncommunicative acts that are necessarily related to the communicative
51
conduct, which in this case included acts necessary to enforce the judgment
and carry out the directive of the writ [(i.e., the act of levying on the writ)].”
(Rusheen, supra, 37 Cal.4th at p. 1065, italics added.) In the present case,
the flight crew’s noncommunicative acts following Phase 1 also were also
“necessarily related to the communicative conduct” of reporting the perceived
security threat.
The public entity immunity cases plaintiffs rely on are also unavailing.
In Jopson v. Feather River Air Quality Management Dist. (2003)
108 Cal.App.4th 492 (Jopson), the plaintiff sued an air quality management
district for negligence after it issued him emission reduction credits (ERCs)
at a certain value. (Id. at pp. 494–495.) While a sale of the plaintiff’s ERCs
was pending, the district notified him that it had made a miscalculation,
reducing the ERCs’ value. (Ibid.) The appellate court observed that the
relevant immunity statute, Government Code section 818.8 “grants public
entities immunity for negligent misrepresentation but not for negligence.”
(Jopson, at p. 495.) The court held that, although the plaintiff styled his
cause of action as “negligence,” his damages were “financial or commercial”
ones caused by reliance on misinformation communicated by a public entity—
a theory barred by Government Code section 818.8. (Jopson, at pp. 501–502.)
Section 2680(h) of title 28 of the United States Code provides an
analogous federal governmental immunity for, among other things, “Any
claim arising out of . . . misrepresentation, deceit, or interference with
contract rights.” This immunity was addressed in Guild v. United States (9th
Cir. 1982) 685 F.2d 324 (Guild), a case noted by the court in Jopson. (Jopson,
supra, 108 Cal.App.4th at p. 497.) Guild involved a homeowners association
suing a federal agency that had recommended the site location and prepared
the construction plans for a dam and reservoir that failed. (685 F.2d at
52
pp. 324–325.) The Ninth Circuit found that this immunity did not shield the
government from liability. The court explained, “The Government is liable
for injuries resulting from negligence in performance of operational tasks
even though misrepresentations are collaterally involved. It is not liable,
however, for injuries resulting from commercial decisions made in reliance on
government misrepresentations.” (Id. at p. 325.) Applying that rule to the
facts of the case, the court held that “[t]he misrepresentation exception does
not apply on these facts because the essence of the complaint is one for failure
to take due care in the performance of a voluntary task.” (Id. at p. 326.) In
other words, “the essence of the complaint” was not “reliance upon
misinformation communicated by the Government.” (Ibid.)
Here, plaintiffs contend that “far from basing their theory of liability on
[Southwest’s] disclosure to law enforcement, the gravamen of [their] single
claim for wrongful death . . . was based on [Southwest’s] negligence in failing
to identify [Ilczyszyn’s] medical emergency as well as providing him timely,
lifesaving aid.” However, plaintiffs’ complaint specifically alleged that the
flight crew was aware Ilczyszyn was experiencing a medical emergency but
decided to treat him as a disruptive passenger, leaving him unattended and
delaying medical treatment by falsely reporting to law enforcement personnel
that he had barricaded himself in the lavatory. Thus, the context for a
potential application of section 44941 was essentially “baked into” their own
allegations. Moreover, as we have already discussed, entitlement to
section 44941 immunity does not turn on whether an act was communicative.
Rather, it turns on whether the circumstances underlying the alleged injury
arise from the decision to declare a security threat.
In any event, the trial court allowed plaintiffs to present their theory
that Southwest was negligent in failing to identify Ilczyszyn’s medical
53
emergency and provide medical treatment, the same noncommunicative
conduct that plaintiffs describe as the gravamen of their case. The court
applied section 44941 to post-Phase 1 conduct only.24 While the court thus
restricted the evidentiary timeline within which plaintiffs could prove their
case, as we have already held, the court did not err in doing so. Moreover,
the jury agreed with plaintiffs that the flight crew was negligent in failing to
provide Ilczyszyn with immediate medical treatment but determined that the
failure to provide aid did not cause his death, a conclusion that is supported
by substantial evidence based on the expert medical testimony offered at
trial, as detailed above.
G. Civil Code Section 47, Subdivision (b)
Finally, plaintiffs assert that the trial court erroneously relied on Civil
Code section 47, subdivision (b) as an alternative ground to bar testimony
regarding the pilots’ disclosure of the threat to Southwest’s ground operations
personnel and the flight attendants’ discussions with the sheriff’s deputies at
the arrival gate. Because we have concluded that the testimony was properly
excluded under section 44941, we need not address this assertion.
III.
DISPOSITION
The judgment is affirmed. Southwest is entitled to its costs on appeal.
24Southwest broadly asserts that the trial court went too far in
allowing plaintiffs to present their case at all, arguing that section 44941
“should [have] preclude[d] all liability, even in Phase 1, foreclosing any
negligence finding.” Given our conclusion that the judgment must be
affirmed, we do not address this argument.
54
EAST, J.
WE CONCUR:
MARGULIES, ACTING P. J.
BANKE, J.
A158352
Ilczyszyn v. Southwest Airlines Co.

Judge of the San Francisco Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
55