Judith Nemsick is a Partner in the New York office
On Oct. 6, 2017, the U.S. Court of Appeals for the Sixth Circuit denied the airline's petition for rehearing and rehearing en banc in Doe v. Etihad Airways, P.J.S.C.1 As discussed in our previous post on this case, the panel in Doe departed from well-established treaty precedent to hold it is not necessary for mental injuries to flow from the passenger's physical injury in order to be recoverable under the Montreal Convention. A petition for writ of certiorari to the U.S. Supreme Court is a potential next step in light of the conflict the decision has created with other Circuit Courts of Appeals2. In the interim, there is likely to be significant attention on how courts outside the Sixth Circuit respond to Doe.
Footnotes
1 870 F.3d 406 (6th Cir. 2017), reh'g en banc denied (6th Cir. Oct. 6, 2017). A petition for writ of certiorari is due 90 days from entry of judgment.
2 See Jacob v. Korean Air Lines Co., 606 Fed. Appx. 478 (11th Cir.), cert. denied, 136 S. Ct. 267 (2015); Bassam v. Am. Airlines, 287 Fed. Appx. 309 (5th Cir. 2008); see also Ehrlich v. Am. Airlines, Inc., 360 F.3d 366 (2d Cir. 2004); In re Air Crash at Little Rock, Ark., on June 1, 1999, 291 F.3d 503 (8th Cir. 2002).
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