Carol Disla-Roa (Associate-Madison, NJ) secured a Special Civil Part trial win for Wilson Elser’s airline carrier client in the Superior Court of New Jersey, Cumberland County. Through clear and persuasive advocacy, Carol highlighted the deficiencies in the plaintiff’s claims and demonstrated why the complaint could not survive under the applicable legal standards. The court dismissed the plaintiff’s complaint for failure to state a claim upon which relief could be granted. In reading his decision on the record, the judge emphasized that the plaintiff’s claim lacked credibility and that she failed to provide sufficient proofs to establish a prima facie case of negligence or a viable breach of contract claim.

Kathryn Grace (Partner-Charlotte, NC), Nicole Melvani (Partner-McLean, VA), and Thomas Tutone (Associate-McLean, VA) obtained dismissal with prejudice of an aviation matter on behalf of Wilson Elser’s client, a student pilot. The case arose out of an airplane crash that resulted in the death of the certified flight instructor, as well as injuries to the client and a teenage passenger. The certified flight instructor’s estate filed a wrongful death claim against our client, who was participating in his first day of flight instruction through a university aviation program on the day of the accident. The amended complaint alleged that the student pilot was nervous and unprepared, and caused a stall during takeoff. Kathryn and Nicole successfully argued against this. In particular, the amended complaint failed to state a claim for relief because it did not allege that the client breached any duty owed under Federal Aviation Regulations. Importantly, and in support of an argument for dismissal with prejudice, they also argued the certified flight instructor was the pilot in command and bore ultimate responsibility for the operation of the aircraft at the time of the accident, and for ensuring the student was adequately prepared for the training flight. While this was a tragic accident, the certified flight instructor’s estate could not sustain a claim for negligence against her student for failure to state a claim and any amendment would be futile. The Court agreed and dismissed the action against our student pilot client in its entirety, with prejudice.

Mark C. Severino (Partner-Las Vegas) and Elisa Wyatt (Of Counsel-Las Vegas) secured dismissal in the Eighth Judicial District Court, Clark County, Nevada, for Wilson Elser’s client, an aviation services company. This case involves a catastrophic accident that occurred in Mexico in 2019. On the day of the accident, the aircraft involved was en route from Las Vegas, Nevada, to Monterrey, Mexico, with ten passengers and three crew members on board. Prior to departure, the plane received services from our aviation client, a fixed base operator. After encountering severe thunderstorms in a municipality in the state of Coahuila, Mexico, the aircraft departed coordinated flight, flew completely out of control, suffered dual engine flameouts, and crashed in a flat descent altitude. All thirteen people on board died in the crash. Plaintiffs alleged that fuel supplied by our client or other services provided by the client caused or contributed to the engine flameouts that led to the crash. Following five years of extensive discovery conducted in the United States and Mexico, Mark and Elisa affirmatively proved that the aviation services company did not cause or contribute to the accident, leading to a negotiated, complete dismissal of all claims against the client. 

Milwaukee partners John Loringer and David Frank, assisted by associate Sam Obscherning, secured summary judgment for an airline client and its insurer in the U.S. District Court for the Eastern District of Wisconsin. The plaintiff, a passenger, claimed that an overhead panel fell and struck him in the chest, allegedly causing injuries that required multiple surgeries to repair an implantable cardioverter defibrillator (ICD). The plaintiff asserted that the airline was negligent in maintaining the aircraft and sought to rely on the doctrine of res ipsa loquitur to meet his burden of proof. On summary judgment the Wilson Elser team argued that the plaintiff could not establish either negligence or causation. The court agreed, emphasizing that the plaintiff had conducted minimal discovery, taken no depositions, and neglected to retain a liability expert. In the court’s view, aircraft maintenance is a technical matter requiring expert testimony and “Plaintiff has failed to present any evidence negligence… regardless of the applicable standard of care.” The court ruled that res ipsa “cannot excuse plaintiff’s lack of evidence here.” The court also rejected the plaintiff’s request for spoliation sanctions, finding no evidence of bad faith and noting that the plaintiff did not report the injury to the airline and did not seek to inspect the aircraft panel or move for a sanction in discovery. The court ultimately held that plaintiff failed to create a triable issue of fact on breach and granted our motion for summary judgment, dismissing all claims with prejudice and removing the case from the trial calendar.

Kathryn A. Grace (Partner-McLean, VA) and Nakea Barksdale (Associate-Baltimore, MD) secured a defense verdict in a breach of contract dispute where the plaintiff alleged he was incorrectly charged for a membership pass offered by our airline client. The plaintiff claimed that he intended to purchase a discounted membership pass but was charged for a higher-tier pass. Through meticulous cross-examination at trial, Nakea demonstrated that the plaintiff not only purchased the premium membership pass but also used its benefits immediately, booking a flight at a significantly reduced fare. Despite the plaintiff's argument, he was unable to provide any documentation to support his claim of an incorrect charge. The court ultimately ruled in favor of the airline, reinforcing the accuracy of its records and its fulfillment of the contractual terms.

William Katt (Partner-Milwaukee, WI) and Nicole Melvani (Partner-McLean, VA) obtained dismissal of an aviation matter filed in Palm Beach County, Florida, on forum non conveniens grounds. The case arose out of an airplane crash in Connecticut, which resulted in multiple claims of death, personal injury, and property damage. Seven individual lawsuits were filed in Connecticut against multiple parties. The aircraft manufacturer settled one of the Connecticut lawsuits and then filed a complaint seeking contribution, indemnification, and equitable subrogation against our client in Florida, where the aircraft owner had its principal place of business, actively seeking to avoid litigating the matter in Connecticut and contesting the existence of personal jurisdiction in the remaining actions. Bill and Nicole filed a Motion to Dismiss for forum non conveniens, arguing that Connecticut was the more appropriate forum. The plaintiff manufacturer opposed the motion, arguing that it had appropriately filed suit in the aircraft owner’s hometown and arguing that the plaintiff’s choice of forum is entitled to great deference. The plaintiff manufacturer also argued the Connecticut state court did not have personal jurisdiction over the plaintiff given it was contesting personal jurisdiction in the remaining actions pending there, and argued it would be prejudiced if it was forced to re-file in Connecticut because it could be found to have waived its personal jurisdiction defenses in the other matters. After considering all of the requisite factors, the Court agreed with Bill and Nicole and granted the Motion to Dismiss, entering an Order that substantively mirrored the draft Order they prepared and submitted to the Court. The Court dismissed the matter without prejudice to plaintiff to re-file in Connecticut within a limited period of time.

William Katt (Partner-Milwaukee, WI) with the help of Nicole Melvani (Partner-McLean, VA) secured a significant defense victory on behalf of a aircraft component manufacturer following a multi-week jury trial in an aviation matter in Rhode Island Superior Court. Wilson Elser was called to assume lead and trial counsel role after the case had been pending for several years. The plaintiff alleged our client’s bushings, a small part used in aircraft engines, failed to conform to design specifications and that the client falsified material certifications. The plaintiff further alleged the bushings migrated inside aircraft engines during operation, causing engine failure. The FAA issued a safety bulletin, mandating a recall for inspection and replacement of bushings. The plaintiff brought claims for breach of contract and several related claims. The plaintiff sought approximately $7.5 million in damages plus punitive damages and pre-judgment interest at 12 percent, including approximately $2.5 million in compensatory damages associated with the recall and another $5 million in consequential damages associated with settlement payments to third parties, which included a $4.5 million settlement payment to passengers who were severely injured when their sightseeing helicopter crashed in California due to engine failure. Prior to trial, Wilson Elser secured summary judgment in the client’s favor on the indemnification count. The remaining counts were tried to a jury. Although the plaintiffs asked for $7.5 million from the jury, their settlement demands during trial were significantly more because they claimed 12 percent pre-judgment interest running from at least 2017. The jury found in favor of Wilson Elser’s client on all counts except for breach of the implied warranties of merchantability and fitness for particular purpose. The jury awarded the plaintiff less than $1.5 million in damages, thereby accepting the defense’s theory that the California accident did not involve a bushing manufactured by Wilson Elser’s client and that the claimed recall damages included unsupported expenses. Because the jury found there was no intentional misrepresentation by the firm’s client, the court dismissed the plaintiff’s punitive damage claim as a matter of law. The verdict was significantly less than the demands made by the plaintiff during trial. Additionally, throughout the litigation and trial, the plaintiff’s primary focus was on the breach of contract and intentional misrepresentation claims, both of which were rejected by the jury. 

William Katt (Senior Counsel-Milwaukee, WI) and Nicole Melvani (Of Counsel-McLean, VA) with the able assistance of paralegal Rachel Swords, obtained a unanimous defense verdict in favor of Wilson Elser’s client in an aviation matter that was tried before a federal jury in the U.S. District Court in Miami, Florida. The case involved a charter aircraft that crashed into the Atlantic Ocean about five miles from its intended destination in the Bahamas. The passenger and pilot survived and were rescued from the water. The passenger contended he suffered severe and permanent injuries, and filed suit against the pilot, the pilot’s employer and Wilson Elser’s client, a fixed-base operator (FBO) that fueled the aircraft. The plaintiff contended our client negligently fueled the “wrong” tanks in the aircraft, which caused or contributed to the accident. The jury found zero causal negligence on behalf of the FBO and returned a defense verdict in our client’s favor. The jury found the pilot and his employer to be responsible for 80 percent of the plaintiff’s injuries and awarded the plaintiff approximately $2.9 million in damages against the pilot and the charter company. The jury also found the plaintiff to be 20 percent responsible for his own injuries. The jury found the FBO to have zero liability for the accident and the plaintiff’s injuries. The jury rendered a unanimous verdict in the FBO’s favor within a few hours of closing arguments.

Pete Greco (Associate-Orlando, FL) obtained a defense verdict in a bench trial in County Court of the Fourth Judicial Circuit for an airline client. A passenger alleged that because the future travel credit she was provided when she voluntarily cancelled her reservation did not work, she was entitled to a cash refund. Peter successfully argued that the client’s Contract of Carriage was binding, applicable and governing of the dispute, and that under that contract, the plaintiff was not entitled to a cash refund for a voluntarily cancelled reservation. Through an airline witness, Pete further demonstrated that the plaintiff had, in fact, successfully used portions of the future travel credit and demonstrated that the remaining portion of the future travel credit did not work only because the plaintiff insisted on selecting a flight with no available seats. The court found, based on his argument, that the plaintiff could have used the remaining portion of the future travel credit and was therefore not entitled to any further compensation. Finally, Pete successfully argued that the contract expressly barred the plaintiff from recovering any of the consequential damages she claimed for her alleged inconvenience.

Kathryn Grace (Partner-Charlotte, NC) and Nicole Melvani (Of Counsel-McLean, VA) prevailed in a seminal case before the Fourth Circuit Court of Appeals, obtaining an Order affirming the grant of summary judgment in favor of a private jet charter company. The Court agreed with Kathryn and Nicole that the Montreal Convention, an international treaty that governs the international carriage of cargo by air, preempted the plaintiffs’ state law claims. The plaintiffs contracted with our client to transport passengers and cargo from Oregon to Switzerland. At a refueling stop in North Carolina, U.S. Customs and Border Protection agents seized and ultimately destroyed the cargo on the grounds that it contained illegal marijuana. The plaintiffs contended that the product being transported was legal hemp and was wrongfully detained and destroyed by the government. The plaintiffs alleged that the charter company’s failure to submit proper customs paperwork resulted in the cargo’s detention and destruction, asserting causes of action for negligence, gross negligence, negligent misrepresentation, breach of fiduciary duty, and unfair and deceptive trade practices. The Fourth Circuit agreed with our argument, finding all of the plaintiffs’ claims fell within the preemptive scope of the Montreal Convention’s provisions and rejecting the plaintiffs’ various attempts to characterize the claims as outside of the Convention’s scope. The Fourth Circuit’s decision will have a significant impact on claims involving international transport.

Kathryn Grace (Partner-McLean, VA) prevailed in a bench trial involving a multifaceted claim pertaining to a passenger’s luggage. The passenger sought to advance a claim of negligence and breach of warranty for two pieces of luggage – one of which was replaced with an alleged faulty bag and one of which was damaged in transit on a different flight. At trial, Kathryn argued that the claim was barred by accord and satisfaction and that the Contract of Carriage contained a Limitations of Liability clause preventing recovery. The trial court agreed and found for the airline client. The passenger appealed and a de novo trial occurred at which the court ruled in favor of the aviation client citing the same grounds. The passenger again appealed, but the Supreme Court of Maryland declined to hear the case.

Patrick Kearns (Partner-San Diego) and Sarena Kustic (Of Counsel-San Diego) obtained dismissal of a complaint with prejudice in a case before the U.S. District Court for the Eastern District of California. The case involved allegations of discrimination arising from the plaintiff’s removal from a flight and being banned from using a national airline, Wilson Elser’s client. Patrick and Sarena removed the state court case to the Eastern District of California, then moved to dismiss the complaint for failure to state a claim. The court granted the motion but gave the pro se plaintiff leave to amend. Instead of filing and amended complaint, the plaintiff filed a new state court action adding more causes of action to the complaint. Patrick and Sarena removed the case to federal court once more and filed a second motion to dismiss for failure to state a claim. This time, they argued leave to amend would be futile because, despite the court providing the plaintiff with clear examples of how to plead his claims, the plaintiff’s new complaint contained the exact same defects as the prior one. The court agreed and dismissed the complaint with prejudice.

Patrick Kearns (Partner-San Diego) and Sarena Kustic (Of Counsel-San Diego) successfully vacated a seven-figure default judgment, and thereafter obtained a dismissal of the complaint with prejudice. The underlying case, filed in 2017, involved a claim against a hospital, a surgeon and Wilson Elser’s client, a national medical air transportation provider. The plaintiff alleged she sustained injuries during surgery that were exacerbated by a delay in medical transport. In 2018, the hospital and surgeon were dismissed at the pleadings stage. By 2021, the plaintiff obtained a default judgment against our client, and nearly a year and a half later the plaintiff served the client with a notice of judgment. Patrick and Sarena moved to vacate the default and default judgment, and quash the false return of service, on the grounds that the plaintiff had served some entity other than the client’s registered agent for service of process in California. On the eve of the opposition’s deadline, the plaintiff stipulated to vacate the default and quash service. Thereafter, Patrick and Sarena moved to dismiss the complaint due to the plaintiff’s failure to effectuate personal service within California’s mandatory period of three years from the date the complaint was filed. The court agreed and dismissed the complaint with prejudice.

Patrick Kearns (Partner-San Diego) and Sarena Kustic (Of Counsel–San Diego) obtained a defense verdict following a six-day jury trial in Federal Court in the Central District of Los Angeles. The case stemmed from a 2014 crash of a Sikorsky MH-60 Special Operations Helicopter flown by the United States Army’s 160th SOAR Division on base at Fort Hunter, Georgia. Litigation against numerous parties were ultimately separated, and litigated in different venues around the country. Wilson Elser’s client manufactured and sold a tactical transponder and emergency locator transmitter (ELT) which the 160th had installed on the aircraft. Upon impact, the ELT did not transmit a signal and the plaintiffs alleged it was defectively designed and manufactured, resulting in a delay of first responders to the site of the crash and resulting injuries. The original suit was filed in 2014, and the case against Wilson Elser’s client was stayed for approximately five years due to the bankruptcy of a co-defendant. A jury trial finally proceeded in mid-July 2023. After the conclusion of evidence and argument, the jury returned a unanimous defense verdict after approximately 45 minutes of deliberation. 

Patrick Kearns (Partner-San Diego) and Sarena Kustic (Of Counsel-San Diego) obtained dismissal of a case with prejudice at the pleadings stage. The case involved allegations of personal injuries stemming from an employee of Wilson Elser’s client, a national airline, playing with a remote control car outside the airline’s hangar. The plaintiff claimed the remote control car struck his foot at a high rate of speed and caused severe injuries. Patrick and Sarena succeeded in removing the state court case to the Northern District of California, then moved to dismiss the complaint for failure to state a claim. The plaintiff filed a late opposition and failed to respond to the court’s order to show cause. The court dismissed the case without prejudice. Six days after the statute of limitations expired, the plaintiff filed the same complaint once again in state court, and Patrick and Sarena removed the case to the Northern District once more. They then moved to dismiss the complaint for failure to state a claim and included an argument based on the expiration of the statutory period. The plaintiff again missed the deadline to oppose and failed to respond to the court’s order to show cause. The court thereafter granted the defense’s motion and dismissed the case with prejudice.