The plaintiffs’ attorney in the Prescod v. AA case (Aug. 19) sends us a letter defending the suit.
Dear Ted:
I happen to have been the Plaintiff’s lawyer in Prescod v. American Airlines, BWIA. You have your facts wrong and your summary of the case is absurd. I suspect you will not report facts from the actual record of the case.
First, before Ms. Neischer got on the plane, AS THE DECISION STATES, her daughter had advised both Airlines that her Mother’s carry on bag (regulation size) contained all of her vital medication and must remain with her at all times on the way to Guyana. This fact was established and was never disputed. As she was boarding her connecting flight some idiot from one of the airlines insisted for no stated reason that she had to relinquish her bag. Ms. Neischer, who went nowhere without her medication put up a fuss, reminded the attendant of the promise made before she left Los Angeles, and yielded only when that attendant promised her that her bag would be with her on her arrival in Guyana the next morning.
What Ms. Neischer did not know that as soon as she gave up her bag, that carry on and all of her other 4 bags had been secretly removed from the BWIA flight by the airlines. (To add insult to this whole affair, she had dutifully paid an $86 surcharge for excess weight for her bags containing her gifts for her 30 + grandchildren in Guyana. )
On her arrival in Georgetown, Guyana she found out her bags were missing and filed a claim report highlighting the emergency and contents of the missing bag. One would think that AA and BWIA would fall over herself to get her removed articles on the very next flight but 6 or 7 flights left NY to Guyana before the bag came 3 days later.
By then, her lungs were filled with mucous caused by her chronic asthmatic condition. (The Airlines postured that she could not prevail because she was destined to die anyway —it’s in the decision –a very humanitarian argument huh? Sounds like something the Nazis would assert )
Now, as for your unsupported claim that she could have obtained the medication for $2…where did you get that? And why did you neglect to state the real reason for her failure to get her medication in your summary?
Tragically, on the day she arrived, Guyana had its national election and for 3 crucial days there were riots in the streets of Georgetown where ALL of the country’s pharmacies and doctors conduct business. Her son lived 50 miles away from the town, had no car, no phone, and the streets of Georgetown were dangerously barracaded with rioters, fires, looting, etc. More importantly, the BWIA representative guaranteed that the bag would be on the very next flight due 7 hours later that evening.
The claim that she could have saved herself was rejected by the Judge. the only reason for the partial reversal is that the trial judge did not make specific findings to what I considered at the time of trial to have been a frivolous contributory claim.
You made it appear that Ms. Neischer voluntarily relinquished her bag, a fact that the Airlines admitted before trial that she did under protest and while crying and pleading with the Airline, letting go only when they promised her it would be waiting for her in Guyana. Trust me, this lady would not had gone on the plane if she knew they would take the bag off the plane.
Although Ms. Neischer had been a smoker, she had not smoked anything for over ten years. I usually DEFEND cases. But these airlines acted so callously that the case cries for recourse for the angry family (6children, 40grandchildren and 10 great grandchildren…every one of the them a solid citizen. She was a prominent nurse and matriarch of a noble close family well known in Guyana.
Had the Airlines not 1) insisted that she relinquish the bag. 2)removed the bag from the plane and 3) Taken their merry old time to reunite her with their bag, she would not have died. BWIA’s own baggage supervisor admitted that this was an emergency that should have caused BWIA to move a mountain and take extraordinary measures to rectify. Instead, AS THE DECISION STATES, they used ‘normal tracing procedures’ whatever that means.
Why don’t you take another look at the record of the case and perhaps concede that if there was ever a case deserving of a recovery for wilful misconduct, this was the case. At least allow your members to hear the other side. Thank you.
Bruce Altshuler,
Beverly Hills, California
Cal. State Bar number 60424
Mr. Altshuler,
I’m comfortable with my one-paragraph summary of the case, which (including the $2 figure) is taken directly from the Ninth Circuit’s opinion. The Ninth Circuit opinion was directly linked, so anyone wishing more detail on the arguments made by both sides can access it. You protest that I’ve omitted some arguments made by the plaintiff, but I’ve omitted defense arguments, too:
- Why didn’t Ms. Neischer pack her medication in her handbag? It seems that Ms. Neischer tried to avoid baggage fees by taking a bulky rollaway suitcase on board and packing a nebulizer and medication in the suitcase for a 22-hour flight from LA to Guyana (17 hours of which remained to be travelled when she relinquished the bag), even though those materials now argued to be essential could have been packed in a smaller bag.
- I didn’t even make reference to the fact that this case falls directly under Article 22 of the Warsaw Convention, relating to damages for delayed baggage. This opinion nullifies that provision, even though it provides for procedures for “a special declaration of interest” that there is additional liability associated with a piece of luggage. Ms. Neischer did not avail herself of those procedures (and, not immaterially, saved herself the additional fees from doing so). This is Hadley v. Baxendale all over again.
- Under the Warsaw Convention, accidents require “unexpected or unusual events.” But “willful misconduct” was found because the risk that the baggage was to be lost was “obvious”! So Ms. Neischer recovers outside of the Warsaw Convention limitations only because her lost luggage was simultaneously unexpected and expected.
As for the contributory negligence claim, histories of Guyana indicate there was rioting throughout December and January of ’97-’98; in any event, whether the rioting was sufficient grounds to avoid medical attention for Ms. Neischer has yet to be resolved. (It’s also simply not the case that Guyana doctors are only in Georgetown.) The Ninth Circuit disagrees with your characterization of the reasonableness of the argument of contributory negligence or whether the trial judge decided it.
In conclusion, I’ll note that when people think of the evils the Nazis committed, it usually isn’t because a defendant has sought to defend itself by disputing that its actions were the cause of the death of a chronically ill passenger who had substandard medical care in a third-world country. My relatives (and, I suspect, some of your relatives) didn’t die in Hitler’s camps so that someone could make a cheap rhetorical point.
Thanks for writing.
Ted Frank
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