By Elaine McArdle
In December, American Airlines became the first airline to settle a lawsuit filed by a passenger who suffered deep vein thrombosis, popularly dubbed "economy class syndrome" because it often afflicts passengers who ride in cramped poorly-designed seats of commercial airlines.
Although there was little fanfare at the time, the settlement was closely watched by airlines around the world, which have been defending themselves with mixed results against suits by passengers who have developed blood clots in their legs during long-distance flights.
The plaintiff's lawyer in the American Airlines case, Mike Danko, told Lawyers Weekly USA that he believes there are tens of thousands of potential DVT cases throughout the world.
Danko estimated that thousands of people die or are seriously injured each year from blood clots resulting from long-distance air travel, yet many people - including lawyers - remain unaware of the extent of the problem.
"It's very serious and extremely widespread, yet for some reason it's been incredibly quiet," said Danko, whose law firm in San Mateo, Calif., is one of the few in the U.S. that has filed suit.
Paul Weinberg of Weinberg & Garber in Northhampton, Mass., said he is awaiting the results of an autopsy before deciding whether to file his first DVT case.
Weinberg, who has litigated several cases against airlines for failure to have defibrillators on planes, was first approached by his client, the widow of a man who died during an overseas flight, because she believed her husband died of a heart attack.
However, initial autopsy results showed that the man may have died of DVT. Further tests are needed before the results are conclusive.
"There's not much doubt in my mind that long flights do increase the likelihood of developing a DVT," said Weinberg, citing a medical study concluding that persons who do not wear support hose during long flights are at a much greater risk of developing thrombosis.
Plaintiffs claim that a combination of factors - the high altitude and dry air aboard flights, plus the fact that passengers sit still for a long time on poorly designed seats - increases the risk that blood will coagulate in the legs. If a clot in the leg dislodges and travels to the lungs or brain, it can be fatal.
While DVT occurs more frequently in flights longer than six hours, even shorter flights present a danger, Danko said, noting that airlines are obligated to warn passengers of the danger and to advise them to stand up and walk around at least once an hour during a flight.
Some airlines - already reeling financially from the global recession and the post-9/11 plummet in air travel - deny any connection between air travel and DVT.
Others are relying on their interpretation of the Warsaw Convention, which severely limits liability for international flights. Since this type of litigation is still new, there is no appellate ruling on this issue yet, Danko noted.
Not Limited To United States
"Economy class syndrome" litigation is not limited to the United States.
Cases have been filed in England, and a law firm in Sydney, Australia, has 800 plaintiffs in a lawsuit against 20 airlines worldwide, including the families of 36 people who died after long-distance flights.
Danko's client developed a blood clot in his leg after an American Airlines flight from Paris to New York. While the client's injuries weren't long-term, he had about $7,000 in medical bills.
The suit was filed federal court in Houston, where American Airlines is headquartered. After the judge ordered the parties into mediation, the case settled in December for a confidential amount. (American Airlines confirmed that the case was settled but declined to make any further comment on DVT litigation, an airline spokesman told Lawyers Weekly USA.)
Danko also represents a 43-year-old man who claims he developed a blood clot after a flight from Atlanta to London. He is now entirely paralyzed except for some eye movement, although his cognitive functioning remains normal. Another of Danko's cases involves a man who dropped dead immediately upon deplaning in Hawaii.
While Danko and others claim the airlines have known for years that DVT is a serious threat, it wasn't until a study was published on Sept. 13, 2001, in the New England Journal of Medicine that the issue was brought to the attention of the medical community, he said, noting that the study demonstrated that the danger of pulmonary embolisms increases dramatically on flights of longer than six hours.
Although the 2001 article documented blood clots in just five cases per million among airline passengers, Danko contended that studies currently under way indicate a much higher risk.
"The medicine is interesting and emerging, and it turns out from studies they're doing now that perhaps one out of 10 people who get off long-haul airline flights have developed a clot of this type serious enough to kill them," said Danko.
Some passengers don't develop symptoms until a few days to a few weeks after the flight, noted Danko, an aviation law specialist who got his first DVT case about a year ago after a 37-year-old woman required emergency open-heart surgery.
The woman, a marathon runner, had flown to Paris to run the Paris marathon. More than two weeks after she returned to the U.S., she suddenly collapsed. Her physician had recently read the New England Journal of Medicine article, asked whether she'd been on any long-haul air flights, and correctly diagnosed a blood clot.
Charles L. Coleman II of San Francisco, who is representing Air France in the case, said he could not comment about the litigation at this time.
Athletes Vulnerable
Athletes are particularly prone to flight-induced DVT, Danko said, because after rigorous exercise their muscles are bleeding, if only in minute amounts.
Although DVT can happen to anyone, pregnant women and recent surgery patients are also at greater risk.
Once a passenger develops a blood clot, even a permanent injury is not sustained, that person remains susceptible for life, Danko said.
"I don't know why that is, but it's a fact that doctors tell everyone with DVT: Once you've had a blood clot, you're at risk the rest of your life," he said. "Anecdotally, you find people who after having one blood clot, they have several others. Dan Quayle had multiple incidents of DVT related to air travel."
Danko, who has sued a number of airlines, including United, Lufthansa and Delta, contends that the industry has known about the problem for years but "kept it to themselves."
As long ago as 1974, many airlines redesigned the seats used by pilots in the cockpit to decrease the chance of blood clots, but did not make the same changes to passenger seats, he said.
But the New England Journal of Medicine article has made a difference, Danko said.
"Most industry groups now concede - partly because of the New England Journal of Medicine article - that there is a relation between long-haul air travel and blood clots," he said.
Warsaw Convention
Because international flights are governed by the Warsaw Convention, which provides that airlines are liable only for "accidents," the law on DVT cases is still developing.
The key issue is whether DVT is an "accident."
"The cases say that an accident is something other than the passenger's internal reaction to the normal operations of the flight," Danko said.
Some airlines deny any connection between DVT and air flight, while all of them claim that DVT is not an "accident" but rather an internal reaction to flight.
While the airlines may appear to have a strong case that DVT doesn't meet the definition of accident spelled out in the treaty, Danko said he believes plaintiffs will prevail on this issue.
"We see it as an accident because airlines failed to warn the passengers of the risk or what steps to take to mitigate that risk," said Danko. "The airlines are saying it's not an accident because it's the passengers' internal reaction to the operations of flight. We're arguing back, if that's so, then the airlines are saying it's normal to get a blood clot. But it's not, because it doesn't have to happen if you take these other steps to prevent it."
If DVT is an accident under the Warsaw Convention, then airlines are strictly liable up to the first $144,000 of a plaintiff's damages. After that, the plaintiff is entitled to recover the rest of his damages if he can prove the airline did not "take all necessary measures to avoid the accident," Danko said.
Those measures should include a strong warning to passengers that they should get up and walk around during a flight, Danko said, and that they should drink plenty of water. Industry guidelines were released two years ago suggesting that airlines tell passengers to exercise during long flights, but this isn't enough, Danko claimed.
"Some airlines will say in a video at the beginning of a flight that there are exercises you should do in your seat. But they don't tell you that failure to do them could lead to potentially deadly blood clots," he said.
Danko said he believes there is one legal theory that could circumvent the Warsaw Convention regardless of how the courts rule on the "accident" issue. His cases are also alleging a claim regarding the design of passenger seats, which he believes contributes to DVT.
"We have evidence that many years ago, pilots were developing blood clots and the airlines redesigned the seats to alleviate that," by ensuring that a person's weight was more evenly distributed over the seat, he said, arguing that these claims should proceed under conventional product liability law since the Warsaw Convention does not apply to manufacturers.
December was a busy month for DVT litigation, with trial courts in Australia and London issued contrary rulings. In London, a court found that DVT is not an accident and therefore the airlines are not liable. However, the Australian court ruled the opposite way.
Also in December, a Texas court ruled DVT could be an accident, Danko said, while last August, a federal court in California ruled that DVT was not an accident.
"So you basically have four decisions, none of which are binding since they're all trial courts," said Danko, who currently has two cases awaiting decisions on pretrial motions in federal courts in California.
One of those cases is the first case he filed, involving the marathon runner. When he filed that case last year, it was the first he knew of in the U.S. Now he knows about 20 other lawyers around the country who have taken DVT cases.
"Most of them are saying that because of the cost involved - assuming they don't have a statute of limitations problem - they'll take a 'wait-and-see' position," he said.
Questions or comments can be directed to the features editor at: bibelle@lawyersweekly.com.
Reprinted with permission from Lawyers Weekly USA, the national newspaper for small-firm lawyers. You can get a free trial subscription to Lawyers Weekly USA by visiting www.lawyersweeklyusa.com or calling 800-451-9998.
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March 3, 2003
