Judge Vaughn Walker of the Northern District Court in San Francisco recently issued an opinion which essentially dismisses the majority of Deep Vein Thrombosis (DVT) cases before him. The matter was originally raised by the various airline defendants at a hearing for summary judgment. The motions were heard on December 8, 2005 but it was not until August 18, 2006 that Judge Walker issued the court’s opinion. The court held that in light of the Ninth Circuit’s recent ruling in Caman v. Continental Airlines Inc., No. 03-56810, ___F3d__, 2006 WL 2136623 (9th Cir. Aug 2, 2006), the court, bound by that court’s decision, has no choice but to rule that “failure to warn” does not constitute an accident for purposes of the Warsaw Convention. However, in a surprising twist at the end of the court’s lengthy opinion the court excepts from dismissal five cases. Three of the cases are being handled by the Sterns & Walker office who in addition to “failure to warn is an accident” alleged other possible theories of “accident”. The court indicated in a later pleading that these alternate theories justify their non-dismissal.
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