Twardowski v. American Airlines

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 29, 2008
• Docket: 06-16726
• Status: Published

Opinion

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

ANTHONY R. TWARDOWSKI, an  individual, Plaintiff-Appellant, No. 06-16726 v.  D.C. No. AMERICAN AIRLINES, INC.; AMERICA CV-05-00237-VRW WEST AIRLINES, INC., Defendants-Appellees. 

MYRA GAIL KASTE; KEITH KASTE;  KELVIN KASTE; KENNETH KASTE; KIM GEORING; KAY KOHRER, No. 06-16730 Plaintiffs-Appellants, v.  D.C. Nos. CV-05-00381-VRW NORTHWEST AIRLINES; KLM ROYAL 04-01606-VRW DUTCH AIRLINES, Defendants-Appellees. 

9657 9658 TWARDOWSKI v. AMERICAN AIRLINES

DEBRA MILLER; MICHAEL DOBLER,  Plaintiffs-Appellants, and ERNEST-WILLIAM REITSCHEL; MARSHA DABULIS, Plaintiffs, v. No. 06-16746 CONTINENTAL AIRLINES, INC.; AIR  D.C. Nos. CV-02-01693-VRW FRANCE, a French corporation, Defendants-Appellees, 04-01606-VRW and THE BOEING COMPANY; AMERICAN AIRLINES, INC.; NORTHWEST AIRLINES, INC.; SPIRIT AIRLINES, INC; DELTA AIR LINES, INC, Defendants. 

DANIEL WYLIE,  Plaintiff-Appellant, v. AMERICAN AIRLINES, INC., No. 06-16749 Defendant-Appellee,  D.C. No. and CV-02-02997-VRW THE BOEING COMPANY; RECARAO AIRCRAFT SEATING; WEBER AIRCRAFT LP, Defendants.  TWARDOWSKI v. AMERICAN AIRLINES 9659

ALAN REINING,  Plaintiff-Appellant, v. No. 06-16751 LUFTHANSA AIRLINES, Defendant-Appellee,  D.C. No. CV-03-00344-VRW and AIRBUS INDUSTRIE, GIE, Defendant. 

MICHAEL WILLIAMS, individually as  personal representative and as successor in interest to the Estate of Robert Williams, deceased; MARK WILLIAMS, individually, and as successor in interest to the Estate of Robert Williams, No. 06-16752 Plaintiffs-Appellants,  D.C. No. v. CV-03-02181-VRW AMERICAN AIRLINES, INC., Defendant-Appellee, and THE BOEING COMPANY, Defendant.  9660 TWARDOWSKI v. AMERICAN AIRLINES

YESMIN A. CANTERBURY; SCOTT  CANTERBURY, Plaintiffs-Appellants, No. 06-16767 v.  D.C. No. CV-04-04872-VRW US AIRWAYS, Defendant-Appellee. 

SHERRI RAHIM; JAVAID RAHIM,  Plaintiffs-Appellants, v. No. 06-16768 CONTINENTAL AIRLINES, INC., Defendant-Appellee,  D.C. No. CV-04-04870-VRW and THE BOEING COMPANY, Defendant.  TWARDOWSKI v. AMERICAN AIRLINES 9661

FRANK S. KLONOSKI; SYDNE E.  KLONOSKI, Plaintiffs-Appellants, v. BRITISH AIRWAYS, a corporation, Defendant-Appellee, UNITED AIRLINES, INC, a No. 06-16771 corporation, Defendant-Appellee,  D.C. Nos. CV-05-02476-VRW and 04-01606-VRW AUSTRIAN AIRLINES GROUP, a corporation; TYROLEAN AIRWAYS, a corporation, Defendants, DOE SEAT MANUFACTURER; DELTA AIR LINES, INC, Defendants. 

DIXIE WEBB; DAVID WEBB,  Plaintiffs-Appellants, v. AMERICAN AIRLINES; SINGAPORE No. 06-16773 AIRLINES LIMITED, a corporation,  D.C. No. Defendants-Appellees, CV-05-02608-VRW and DOE SEAT MANUFACTURER, Defendant.  9662 TWARDOWSKI v. AMERICAN AIRLINES

BERNARDO A. CONTE; LIDIA CONTE,  Plaintiffs-Appellants, No. 06-16776 v.  D.C. Nos. CV-05-01320-VRW BRITISH AIRWAYS, PLC, 04-1606 VRW Defendant-Appellee. 

JAN LEENDERS,  Plaintiff-Appellant, No. 06-16777 v.  D.C. Nos. CV-05-01790-VRW KLM ROYAL DUTCH AIRLINES; CONTINENTAL AIRLINES INC., 04-1606 VRW Defendants-Appellees. 

WILLIAM HERBERT SMITH,  Plaintiff-Appellant, No. 06-16782 v.  D.C. Nos. CV-05-02748-VRW UNITED AIRLINES INC., a corporation, 04-1606-VRW Defendant-Appellee. 

RONALD GARDNER; LUANNE  GARDNER, Plaintiffs-Appellants, No. 06-16783 v.  D.C. No. VARIG; CONTINENTAL AIRLINES, CV-05-01131-VRW INC.; DOE SEAT MANUFACTURER, Defendants-Appellees.  TWARDOWSKI v. AMERICAN AIRLINES 9663

RICHARD STEIN; CHARLOTTE STEIN,  Plaintiffs-Appellants, v. No. 06-16786 MIAMI AIR CHARTERS; THE BOEING  D.C. No. COMPANY; MIAMI AIR CV-05-00369-VRW INTERNATIONAL, INC., Defendants-Appellees. 

TAUFIK RIDANI; JANA FAWN MILLS,  Plaintiffs-Appellants, v. No. 06-16788 KLM ROYAL DUTCH AIRLINES, Defendant-Appellee,  D.C. Nos. CV-04-01092-VRW and 04-01606-VRW THE BOEING COMPANY; NORTHWEST AIRLINES, INC., Defendants. 

CHARLES COOLURIS,  Plaintiff-Appellant, v. No. 06-16792 UNITED AIRLINES, INC; UAL CORPORATION,  D.C. Nos. CV-03-03637-VRW Defendants-Appellees, 04-1606-VRW and BOEING COMPANY, Defendant.  9664 TWARDOWSKI v. AMERICAN AIRLINES

MADHAVI PARVATHANENI,  individually, as personal representative, and as successor in interest to the Estate of Srinivas Samineni, deceased, and as Guardian Ad Litem for Aneesh V. No. 06-16797 Samineni, a minor, Plaintiff-Appellant,  D.C. Nos. CV-03-03842-VRW v. 04-1606-VRW SINGAPORE AIRLINES, a corporation, Defendant-Appellee, and INDIAN AIRLINES, Defendant. 

EVELYN PLOTKIN,  Plaintiff-Appellant, v. BRITISH AIRWAYS PLC, a No. 06-16801 corporation; BOEING COMPANY, Defendants-Appellees,  D.C. Nos. CV-03-03242-VRW and 04-1606-VRW FLYING SERVICE ENGINEERING AND EQUIPMENT, LTD., Defendant.  TWARDOWSKI v. AMERICAN AIRLINES 9665

CHRISTINE BRYNE,  Plaintiff-Appellant, v. UNITED AIRLINES, INC; UAL No. 06-16803 CORPORATION,  D.C. No. Defendants-Appellees, CV-04-01022-VRW and THE BOEING COMPANY, Defendant. 

MARK WOODS; LAURA SMITH,  Plaintiffs-Appellants, No. 06-16804 v.  D.C. No. AIR NEW ZEALAND; DOE SEAT CV-05-01733-VRW MANUFACTURER, Defendants-Appellees. 

RICHARD JAFFE; ELLEN JAFFE,  Plaintiffs-Appellants, No. 06-16805 v.  D.C. No. EL AL ISRAEL AIRLINES, LIMITED; CV-04-01807-VRW AMERICAN AIRLINES, INC., Defendants-Appellees.  9666 TWARDOWSKI v. AMERICAN AIRLINES

MARSHA SHUMAKER, individually  and as Guardian Ad Litem for plaintiffs Ryan Shumaker and Katie Shumaker; RYAN SHUMAKER, a minor; KATIE SHUMAKER, a No. 06-16831 minor, Plaintiffs-Appellants,  D.C. No. CV-04-04322-VRW v. UAL CORPORATION; UNITED AIR LINES, INC.; UNITED AIRLINES INC, Defendants-Appellees. 

JAMES C. TEPE, individually, and  as personal representative and executor of the Estate of Rosemary Tepe, Deceased; MARY THERESE HANKNER; PATRICIA KREILING; SUSANNE TEPE; PETER TEPE; JEAN TOLBERT; JEAN WURTENBERGER; LAWRENCE TEPE; ANNE TEPE; MARYLIN SEASTROM; No. 06-16832 JEROME A. TEPE; MATTHEW TEPE, Plaintiffs-Appellants,  D.C. No. CV-04-04527-VRW v. AIR NEW ZEALAND; DELTA AIRLINES; DELTA AIRLINES INC, Defendants-Appellees, and THE BOEING COMPANY, Defendant.  TWARDOWSKI v. AMERICAN AIRLINES 9667

RONALD SLOSKY,  Plaintiff-Appellant, No. 06-16836 v.  D.C. No. ALASKA AIRLINES, INC., CV-04-00487-VRW Defendant-Appellee. 

JANICE SCHMIDT,  Plaintiff-Appellant, No. 06-16837 v.  D.C. No. CONTINENTAL AIRLINES, INC., CV-03-05538-VRW Defendant-Appellee. 

JOSEPH J. LABADIA,  Plaintiff-Appellant, No. 06-16855 v.  D.C. No. VIRGIN ATLANTIC AIRWAYS, LTD., CV-05-02952-VRW Defendant-Appellee. 

KAMIL MATYSKA,  Plaintiff-Appellant, No. 06-16860 v. KLM ROYAL DUTCH AIRLINES;  D.C. Nos. CV-03-04102-VRW NORTHWEST AIRLINES, INC.; THE CV-04-01606-VRW BOEING COMPANY, Defendants-Appellees.  9668 TWARDOWSKI v. AMERICAN AIRLINES

WILSON OLIVEIRA; PAULA SEIXAS,  Plaintiffs-Appellants, No. 06-16863 v.  D.C. Nos. CV-03-04830-VRW UNITED AIR LINES, INC.; UAL CORPORATION; BOEING COMPANY, CV-04-01606-VRW Defendants-Appellees. 

TAPA BISWAS; SUSHMITA ROY,  Plaintiffs-Appellants, No. 06-16985 v.  D.C. No. BRITISH AIRWAYS, CV-05-01895-VRW Defendant-Appellee. 

CYNTHIA RIALS,  Plaintiff-Appellant, v. No. 06-16987 UNITED AIRLINES; JAPAN AIRLINES;  D.C. No. DOE SEAT MANUFACTURER; UNITED CV-05-02493-VRW AIRLINES, INC, Defendants-Appellees.  TWARDOWSKI v. AMERICAN AIRLINES 9669

FRANK S. KLONOSKI; SYDNE E.  KLONOSKI, Plaintiffs-Appellants, v. No. 06-17019 DELTA AIRLINES, INC.; BRITISH  D.C. Nos. CV-05-02476-VRW AIRWAYS; AUSTRIAN AIRLINES GROUP; TYROLEAN AIRWAYS; 04-1606-VRW UNITED AIRLINES, INC; DOE SEAT MANUFACTURER, Defendants-Appellees. 

SHAWN HARRIS,  Plaintiff-Appellant, No. 06-17027 v.  D.C. No. ATA AIRLINES, INC., a corporation, CV-04-01461-VRW Defendant-Appellee. 

CHANNA VAJJALA PRASAD,  Plaintiff-Appellant, No. 06-17028 v.  D.C. No. ATA AIRLINES INC.; LUFTHANSA CV-04-00875-VRW GERMAN AIRLINES, Defendants-Appellees.  9670 TWARDOWSKI v. AMERICAN AIRLINES

JULIE BRACKENBURY; CHRISTOPHER  BRACKENBURY, No. 06-17044 Plaintiffs-Appellants, v.  D.C. No. CV-05-03873-VRW VIRGIN ATLANTIC AIRWAYS, LTD., OPINION Defendant-Appellee.  Appeal from the United States District Court for the Northern District of California Vaughn R. Walker, District Judge, Presiding

Argued and Submitted May 12, 2008—San Francisco, California

Filed July 30, 2008

Before: Betty B. Fletcher and Pamela Ann Rymer, Circuit Judges, and Kevin Thomas Duffy,* District Judge.

Per Curiam Opinion

*The Honorable Kevin Thomas Duffy, Senior United States District Judge for the Southern District of New York, sitting by designation. 9672 TWARDOWSKI v. AMERICAN AIRLINES

COUNSEL

Clay Robbins, Magana Cathcart & McCarthy, Los Angeles, California (argued); Randy Baker, Seattle, Washington, for the plaintiffs-appellants.

William Boyce, Fulbright & Jaworski, Houston, Texas; Rich- ard Grotch, Coddington, Hicks & Danforth, Redwood City, California; Samantha D. Hilton, Kenney & Markowitz, San Francisco, California; Charles L. Coleman, Holland & Knight, San Francisco, California; Clem C. Trischler, Pietra- gallo, Bosick & Gordon, Pittsburgh, Pennsylvania (argued); Sara A. Simmons, Law Offices of Sara A. Simmons, San Francisco, California; Kevin R. Sutherland, Clyde & Co. US, Woodland Hills, California; Diane Westwood Wilson, New York, New York; Jeffrey A. Worthe, Santa Ana, California; Rod D. Margo, San Francisco, California (argued), for the defendants-appellees.

OPINION

PER CURIAM:

In these consolidated appeals,1 airline passengers or their 1 The cases were transferred to the Honorable Vaughn R. Walker in the Northern District of California pursuant to order of the Judicial Panel on Multidistrict Litigation under 28 U.S.C. § 1407, MDL Docket No. 04- 01606. In re Deep Vein Thrombosis Litigation, 323 F. Supp. 2d 1378 (J.P.M.L. 2004). The district court’s judgment is appealed under the lead case of Miller v. Continental Airlines, Inc. (No. 06-16746). We ordered the cases consolidated for purposes of appeal. Air New Zealand, Ltd., Israel Airlines, Ltd., Japan Airlines, KLM Royal Dutch Airlines, Luf- TWARDOWSKI v. AMERICAN AIRLINES 9673 survivors appeal from summary judgment in favor of Conti- nental Airlines and a number of other air carriers on their claim for damages for failure to warn of the risk of Deep Vein Thrombosis (DVT) on international flights. They argue that the airlines’ refusal of requests to warn was an unexpected event and thus, an “accident” under Article 17 of the Warsaw Convention, because before their flights, the airlines’ trade organization, the English House of Lords, and airline medical officers had urged airlines to warn of DVT risks, and the air- lines themselves had publicly represented that preventing pas- senger injury was a priority. However, we have already held that developing DVT in-flight is not an “accident,” Rodriquez v. Ansett Australia, Ltd., 383 F.3d 914, 917 (9th Cir. 2004), and that failing to warn about its risk is not an “event” for purpose of liability for an “accident” under Article 17, Caman v. Continental Airlines, Inc., 455 F.3d 1087, 1092 (9th Cir. 2006). Neither requests by public agencies, nor the airlines’ public commitment to safety, converts the failure to warn about DVT into an event or accident; the gravamen remains, at its core, a failure to warn. If there is no liability for failure to warn, there is none for failure to warn effectively. Accord- ingly, we affirm.

I

Between 2001 and 2004, passengers or their decedents pur- chased a plane ticket on an air carrier for an international flight during which they allegedly incurred injuries and, in five cases, death, which they attribute to DVT. Deep vein thrombosis is a medical condition in which a blood clot forms in the deep veins of the legs. Before their flights, the Interna-

thansa German Airlines, and Singapore Airlines, Ltd. separately filed a joint brief, as did Yesmin A. Canterbury in her case against US Airways. Unless necessary for context, we refer to Miller and the other appellants as “passengers,” and to Continental and the other appellees as “airlines” or “air carriers.” 9674 TWARDOWSKI v. AMERICAN AIRLINES tional Air Transport Association (IATA), the English House of Lords, and airlines’ own medical personnel had suggested that airlines warn passengers about DVT. For example, in December 2000, the British House of Lords published a report suggesting that airlines should make DVT information avail- able through “high profile pre- and in-flight preventive advice” as well as “active encouragement of in-flight mobility and preventive leg exercises.” In a magazine article, the chief medical officer of United Airlines, Dr. Gary Kohn, said that United takes extra safety steps and gives passengers tips on avoiding DVT. And in February 2001, the IATA issued a press release that stated, among other things, at the present time, there is no conclusive medical evidence supporting a connection of DVT with long distance travel; air carriers should warn passengers of the risk of DVT at the time of making reservations; and on board, airlines should encourage passengers to drink sufficient fluids, wear loose fitting clothes, avoid smoking and alcoholic beverages, and perform physical exercises in their seats. Air carriers generally put information about DVT on their websites and in inflight mag- azines. Air carriers also publically state that preventing pas- senger injury is a priority.

Air carriers moved for summary judgment, which the dis- trict court granted. The court concluded that Caman mostly controlled, but that, to the extent passengers maintained that the airlines elected not to give warnings (or effective warn- ings), those decisions would be too remote from the embark- ing, disembarking, and on-board process for injury to be compensable under Article 17. The court allowed discovery into industry practice and individual airline policy, but rejected passengers’ Fed. R. Civ. P. 56(f) request for addi- tional discovery.

Passengers timely appealed.

II

The United States is party to the Convention for the Unifi- cation of Certain Rules Relating to International Transporta- TWARDOWSKI v. AMERICAN AIRLINES 9675 tion by Air, commonly known as the “Warsaw Convention.” Oct. 12, 1929, 49 Stat. 3000, T.S. No. 876 (1934). The Con- vention provides uniformity with respect to documentation and certain procedural matters, and imposes limitations on lia- bility. El Al Israel Airlines, Ltd. v. Tseng, 525 U.S. 155, 169 (1999); In re Aircrash in Bali, Indonesia on April 22, 1974, 684 F.2d 1301, 1307 (9th Cir. 1982). The “recovery for a per- sonal injury suffered on board an aircraft or in the course of any of the operations of embarking or disembarking [an air- craft], if not allowed under the Convention, is not available at all.” Tseng, 525 U.S. at 161 (quotation and citation omitted).

[1] Article 17 governs injury to persons suffered during international air travel and provides:

The carrier shall be liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking.

Warsaw Convention, Art. 17.

[2] The Convention itself does not define “accident,” but the Supreme Court did in Air France v. Saks, 470 U.S. 392 (1985). An “accident” is an “unexpected or unusual event or happening that is external to the passenger.” Id. at 405. Although “[t]his definition should be flexibly applied after assessment of all the circumstances surrounding a passenger’s injuries,” id., “when the injury indisputably results from the passenger’s own internal reaction to the usual, normal, and expected operation of the aircraft, it has not been caused by an accident, and Article 17 . . . cannot apply,” id. at 406. In turn, the Court focused on the meaning of “event” in Olympic Airways v. Husain, 540 U.S. 644 (2004). There, a passenger and his wife were seated near the smoking section. The pas- senger had a history of anaphylactic reactions to smoke and 9676 TWARDOWSKI v. AMERICAN AIRLINES asked a flight attendant to be moved away from it. The crew refused the request, and the passenger died in an apparent reaction to the smoke in flight. Even though the conduct amounted to inaction, the Court concluded that it could never- theless be an “event” because “[t]he rejection of an explicit request for assistance would be an ‘event’ or ‘happening’ under the ordinary and usual definitions of these terms.” Id. at 655.

[3] Based largely on this rationale, passengers here contend that it was equally unexpected and unusual for air carriers not to warn effectively about DVT because the airlines had been “requested” to do so by IATA, the English House of Lords, and airline doctors. However, an airline’s failure to warn a passenger about DVT is not an “event,” and thus not an Arti- cle 17 “accident.” Caman, 455 F.3d at 1092. It does not become one simply because public agencies have recom- mended, or “requested,” warnings.

Other courts, including those of signatory nations whose views are entitled to weight, are in accord. See, e.g., Blansett v. Continental Airlines, Inc., 379 F.3d 177, 180 (5th Cir. 2004) (acknowledging that the IATA has recommended that airlines implement a schedule of instructions on the risks of DVT, and holding that Continental’s failure to warn of DVT was not an “unusual or unexpected event” and therefore not a qualifying “accident”); Povey v. Qantas Airways Ltd., (2005) 223 C.L.R. 189 (Austl.) (holding that the failure to warn of DVT is not an actionable “accident” under the Con- vention); Deep Vein Thrombosis and Air Travel Group Litig., [2005] UKHL 72, [2006] 1 A.C. 495 (U.K.) (same). Nor does the Federal Aviation Administration require warnings on DVT.

[4] Passengers’ reliance on McCaskey v. Continental Air- lines, Inc., 159 F. Supp. 2d 562 (S.D. Tex. 2001), and Fulop v. Malev Hungarian Airlines, 175 F. Supp. 2d 651 (S.D.N.Y. 2001), is misplaced. Unlike in Caman, Rodriguez, and Blan- TWARDOWSKI v. AMERICAN AIRLINES 9677 sett, injuries in both these cases (as in Hussain) stemmed from specific health-based requests for help that were unheeded by airline crew. The passenger in Fulop had a heart attack on board, 175 F. Supp. 2d at 664; in McCaskey, a stroke, 159 F. Supp. 2d 568; yet in neither case did the plane divert. Gener- alized requests by public agencies to warn are quite different from the particularized requests by individual passengers for assistance, and the airline’s response to them, at issue in these cases. Nor does our decision in Prescod v. AMR, Inc., 383 F.3d 861 (9th Cir. 2004), support passengers’ submission that a “promise” by air carriers to make passenger safety a priority is an “event.” There, an embarking passenger made a specific request — that a bag with medications and a breathing device stay with her on the flights ahead — and the airline gave its word to honor this request. The airline then unexpectedly seized, and delayed, the bag. We concluded that seizing the bag was an “unusual and unexpected event” because doing so was contrary to the airline’s specific promise, and was exter- nal to the passenger for the same reason the refusal of assis- tance in Husain was external to the passenger. Prescod, 383 F.3d at 868. A failure to follow through on a promise to take care of a specific, health-related request, which was unex- pected in Prescod because of the promise, does not mean that every injury to a passenger is an unexpected “event” simply because airlines have declared that avoiding injury to passen- gers is a priority.

Just as we found it unnecessary to decide how industry standards figure into the Article 17 analysis in Caman, it is unnecessary to do so here. Passengers present no substantial evidence of an industry standard with respect to warning about the risks of DVT.

Finally, to the extent that passengers fault the district court for having invoked Article 17’s space and temporal limita- tions, it was in response to their alternative position that the airlines “elected” or decided not to warn despite requests to do so. However, we cannot see how it matters whether, or 9678 TWARDOWSKI v. AMERICAN AIRLINES when, a decision not to warn was made in this case as there was no duty to warn of DVT risks in any event.

III

Passengers submit that regardless of how we view their case as to others, the judgment must be reversed as to Singa- pore Airlines because Singapore violated its own safety pol- icy. Passengers’ only submission in support is a newspaper article, which is hearsay. As there is no substantial evidence of Singapore’s policy, we need not (and do not) decide what effect, if any, an airline’s violation of its own policies would have on liability under Article 17.

IV

[5] Passengers maintain that such DVT warnings as were given through videos, magazines, and in ticket packets, failed to notify them of the risks of DVT. This is beside the point, given our holding in Caman that the airlines have no duty to warn of the risks of DVT. Given no duty to warn, it follows that there is no duty to warn in any particular way.2

V

Yesmin A. Canterbury’s argument that summary judgment should be reversed on the ground that her declaration indi- cates that a US Airways flight attendant prevented her from standing and moving around during flight, even if properly raised in the district court, lacks merit. There was nothing unusual or unexpected about this flight attendant’s instruc- tions to Canterbury to remain seated, so this occurrence can- not constitute an Article 17 accident. See Witty v. Delta Air 2 As the Court made clear in Saks, whether there is an “accident” for purposes of Article 17 is different from the question whether an air carrier has done all it can to prevent an injury that is inherent in air travel for pur- poses of Article 20(1). 470 U.S. at 407. TWARDOWSKI v. AMERICAN AIRLINES 9679 Lines, Inc., 366 F.3d 380, 385 (5th Cir. 2004) (“[A]ny warn- ing that passengers should not stay in their seats, but should instead move about to prevent DVT, would necessarily con- flict with any federal determination that, all things considered, passengers are safer in their seats.”).

VI

Passengers’ argument that additional discovery would have disclosed additional refused requests and disregarded state- ments establishing the necessity to warn of DVT, and that failure to do so was part of a cover-up of DVT risk, fails for essentially the same reasons. The district court permitted broad discovery into the airlines’ actual practices, warnings of the risks of DVT, and policies. Beyond this, discovery would be unlikely to produce any probative evidence.

AFFIRMED.