Archive | Author Articles RSS feed for this archive

“Win in State Court, Lose in Federal Court.” The Lament of the Aviation Plaintiff Litigator.

February 2, 2022

0 Comments

By David Cluxton

“Win in state court, lose in federal court.” The lament of the aviation plaintiff litigator whilst crying—not always metaphorically speaking—into their beer at the end of another frustrating day battling before the federal bar. It is no secret that U.S. state courts are generally regarded as being pro-plaintiff, while the U.S. federal courts are seen as pro-defendant. This is a reality that makes itself felt in any number of ways and can, not only be of great significance to the litigation of a given case, but often also outcome determinative. This is especially true in the litigation of aviation passenger claims, that are, by the nature of air transport, more likely to involve a foreign element, and thereby expose the case to issues of competing jurisdiction and conflict of laws.

For instance, if we take a hypothetical crash occurring in Colombia of an Irish-registered aircraft, operated by a U.S. airline, and involving death or personal injury to a passenger of French nationality, these circumstances could offer the plaintiff a choice of several forums in which to pursue a claim. In such cases, it almost goes without saying that the plaintiff will elect to sue in a forum within the United States; it being the forum of choice for the litigation of aviation passenger claims. The United States has long been the center of gravity for such litigation. Many factors make trial in the United States desirable, such as the availability of contingency fees, wide-reaching rules of pre-trial discovery, highly experienced law firms specialized in aviation litigation. But, above all, it is usually the quantum of damages likely to be awarded by in a U.S. forum that is the decisive factor in choosing to sue in the United States.

Where some element of an aviation passenger case touches the United States, the plaintiff lawyer will seek to bring that case in a U.S. court. But where that case involves an international component that also provides for the possibility of suing in an alternative foreign forum, then the plaintiff lawyer seeking to sue in the United States must wrestle with the problem of a common law doctrine called forum non conveniens. Simply put, the doctrine of forum non conveniens (FNC for short), permits the chosen forum (i.e., the court to which the plaintiff has brought their claim) to decline jurisdiction over the case, at the behest of the defendant, where an alternative forum is deemed to be more appropriate or convenient in the circumstances. For example, in our hypothetical example above, the defendant may argue that Colombia is the more appropriate forum for resolving the claim, because, as the location of the accident, a Colombian forum would have better access to evidence, and/or that there is a greater public interest in the litigation in Colombia than in the United States, and/or that there is existing litigation of other actions occurring there pertaining to the same accident; the possible reasons are legion.

The specter of FNC dismissal of an international aviation passenger claim is one such area where the difference in treatment between U.S. state courts and U.S. federal courts is most conspicuous and influential. This is because there is a much greater likelihood of FNC dismissal from a U.S. federal court than from a U.S. state court. The more conservative leaning and pro-defendant tendencies of U.S. federal courts mean that they are more likely to side with the defendant who is seeking dismissal on grounds of FNC. For this reason, the plaintiff aviation litigator will attempt to avoid federal court entirely by pleading their case exclusively on state law. However, there are a number of pitfalls to be avoided if one wants to keep a case in state court, e.g., federal question matter.

When it comes to claims to which the Warsaw Convention 1929 or the Montreal Convention 1999 apply, keeping a case in state court has proven a Sisyphean task. These conventions (these are multilateral treaties) govern the liability of the carrier for international carriage by air of passengers, baggage, and cargo. They contain uniform rules pertaining to matters of such as liability, jurisdiction, defenses, time limitations, and so on. Thus, where a passenger is killed or injured in an aviation accident to which one of these conventions applies, an action for damages (e.g., a wrongful death action) must be brought against the carrier subject to its provisions.

Where the Warsaw Convention 1929 or Montreal Convention 1999 apply, if a plaintiff sues in state court, pleading a state-law cause of action for wrongful death, the immediate response of the defendant carrier will be to seek to have the action removed to federal court. When the plaintiff then seeks remand back to state court, the defendant carrier will argue that the applicable convention provides the cause of action, and, since it arises under the law of the United States, the federal courts have jurisdiction. What is more, the defendant will argue that the cause of action under the applicable convention is exclusive and completely preempts of any causes of action under state law. Thus, even where the plaintiff’s well-pleaded complaint reveals only a state-law cause of action, that cause of action is effectively converted into a federal cause of action. Unfortunately, many federal courts have proved indulgent of these arguments by defendant carriers and have endorsed the doctrine of the exclusivity of the cause of action of the Warsaw and Montreal Conventions.

Is this conversion of a state-law action into a federal one the result of juristic hocus pocus, or some arcane legal alchemy? Whatever its true nature, the practical result is that aviation passenger cases that are brought first in state courts are routinely removed to a federal forum. Once there, the likelihood is that the defendant will seek dismissal on grounds of FNC, arguing that a foreign forum is the more appropriate or convenient forum for resolution of the claim. Of course, the reality is that the defendant’s motivation is seldom, if ever, appropriateness or convenience; instead, it is the desire to avoid a U.S. forum in preference for a foreign forum where the ultimate quantum of damages likely to be awarded will be much less. In most cases, once the litigation of the claim in a U.S. forum has been averted, the parties will elect to settle out of court.

Is it fair to plaintiffs to deprive them of their choice of forum in this way? The answer to this question is largely dependent upon establishing whether or not the cause of action of the Warsaw and Montreal Conventions is indeed exclusive. Was it the intention of the drafters of those treaties that they should be a one-stop-shop for the passenger claims, excluding reference to national law causes of action; or, were the drafters satisfied with merely laying down the conditions upon which national law causes of action could be exercised? The titles of those Conventions both refer to the “unification of certain rules”, i.e., not all rules. This would suggest that the drafters intended the latter, not the former. In which case, the drafters would not have objected to a plaintiff basing their claim on state law and pursuing it to a conclusion in a state court. If, as I argue, the doctrine of exclusivity of cause of action is doctrinally unsound and is in fact the result of decades of mistaken interpretations, overlooked distinctions, and exaggerated conceptions, we must seek out the true motivation for its creation.

In the specific context of aviation passenger litigation, why should the U.S. courts seek to deprive the plaintiff of their choice of forum? As is demonstrated in my book, the reason lies in the United States’ refusal to ratify an amending protocol to the Warsaw Convention 1929, i.e., the Hague Protocol 1955, and the resulting difficulties that this produced and that, in turn, gave rise to the latent, compelling policy justifications for indulging the concept of exclusivity of cause of action. These policy justifications are, however, no longer salient. This is especially so in the context of the Montreal Convention 1999, that is, after all, a modernization and consolidation of the Warsaw Convention System, and, furthermore, encapsulates a new balance of interests favoring the plaintiff passenger (qua consumer) vis-à-vis the defendant carrier. In spite of this, the unsound doctrine of exclusivity of cause of action persists, continuing to prejudice the interests of plaintiff passengers in favor of the interests of air carriers, their insurers, and the wider air transport industry. Ensuring the equitable and speedy resolution of international aviation passenger claims is one of the purported purposes of the Montreal Convention 1999, and the desire to strike a new, fairer deal for the plaintiff passenger was voiced by the drafters as a key goal during its gestation. However, the U.S. federal courts continued endorsement of the doctrine of exclusivity of cause of action is undermining those goals. It is my hope that my book might provide ammunition to those who seek to overturn the current consensus and banish the doctrine, or at least prompt legislators to remedy the situation.


Aviation Law Cause of Action Exclusivity in the Warsaw and Montreal Conventions by David Cluxton is out next month. The book is available for pre-order on our website.

Continue reading...

Transforming Healthcare Through Innovation and Entrepreneurship

January 18, 2022

0 Comments

Dr Claudine Kearney explores the leadership of innovation and entrepreneurship in healthcare.

Creativity, innovation and entrepreneurship are important concepts and critical for the global advancement of healthcare. Within healthcare it is important to recognize that creativity is the first step for innovation, which can emerge anywhere and at any level within the organization. Innovation is a necessity for healthcare now and in the future particularly with the growing demand on the healthcare system driven by an aging population, an increasing prevalence of chronic disease and illnesses, and changes in patient needs with requirements for more personalized patient care. Scientific and technological advances are at the centre of healthcare innovation. Therefore leaders of healthcare organizations need to develop a climate that supports and empowers individuals and teams to be creative and innovative and in doing so nurture the entrepreneurial spirit and apply core business principles to bring new ideas into commercially viable medical innovations that will change the world of healthcare.

Over the last number of decades the field of healthcare has experienced significant innovations developed to enhance life expectancy and quality of life. The development of innovation in healthcare is a response to the critical needs of patients that can emerge over time or as a result of certain unprecedented circumstances that quickly emerge and need to be addressed urgently. This can be a result of the aging population and growing needs to address certain chronic diseases or the unprecedented global pandemic of Covid-19. Understanding innovation and the different types of innovation and the opportunities for innovation is significant for the field of healthcare. Healthcare organizations that support and nurture the innovative capability of their individuals and engage in open innovation can lead to the effective process of innovation that will result in new product, services, processes, technologies and delivery methods that generate patient value and enhance the healthcare system. It is the effective link between scientific and technological advances and meeting the diverse needs of stakeholders that leads to successful innovations that generate value in healthcare.

Leadership is the role of all healthcare professionals

Leadership is no longer focused on formal senior positions, but the role of all healthcare professionals throughout the healthcare organization. Traditional hierarchical practices have more recently given way to recognize leaders as part of a group and leadership as a more interactive process. Leadership style and practices have a significant impact on healthcare organisations and their engagement in innovation and entrepreneurship. Therefore, it is paramount to ensure the right leadership practices that will improve patient experience and care; reduce medical errors, infection and mortality; increase staff retention and morale; decrease staff turnover, absenteeism, stress and burnout. On this premise the integration of entrepreneurship and leadership to achieve entrepreneurial leadership can make a major contribution to the field of healthcare.

The challenge facing many healthcare organizations in today’s complex and unprecedented environment is how to effectively develop creativity and innovation among individuals and teams. Healthcare organizations need to meet the demands of a diverse group of stakeholders but most importantly address patient needs. The ability of the organization to address the daily healthcare needs, while at the same time having a futuristic approach to innovation, is challenging yet imperative. Innovation and entrepreneurship requires people. Therefore healthcare organizations need to utilize the competencies and creativity of their people to work together to identify opportunities for the betterment of healthcare. This requires leadership that drives innovation and entrepreneurship, and facilitates continuous engagement, collaboration, teamwork and effective communication.

To transform healthcare, innovation and entrepreneurship needs
to start with patient needs at the forefront

In the 21st Century, women represent 70 percent of the healthcare workforce, yet globally leadership roles particularly at the more senior level continues to be highly skewed towards men. This continuous underrepresentation of women in leadership roles in the healthcare sector is a global norm that needs to change. Women in innovation and entrepreneurship in healthcare are also experiencing gender bias. Healthcare organizations are not adequately addressing the disparity of gender equality in leadership, innovation and entrepreneurship. To transform healthcare, innovation and entrepreneurship needs to start with patient needs at the forefront. This can be best achieved when there is supportive leadership and equal opportunities for all qualified healthcare professionals to hold leadership roles and engage in the innovation process utilizing competencies and experiences and addressing fundamental gaps and defficiencies in healthcare delivery.

Innovations in healthcare products, assessment procedures, diagnoses, treatments,  and delivery of care have been significantly developed in recent decades. Such innovations increase patient quality of life and life expectancy and enhance the delivery of high quality and safe care for all patients. The development of innovations in healthcare also increases efficiency, effectiveness, accessibility and reduces medical errors and costs. The growing emphasis on the importance of innovation and entrepreneurship to healthcare should encourage leaders in healthcare organizations to support and facilitate more innovative ways to generate greater patient value into the future. Innovation and entrepreneurship in healthcare needs to have a future oriented mindset that understands ‘one size does not fit all’. A more personalized approach is needed, through effective interaction between healthcare professionals, stakeholders and other key experts internally and externally to develop future innovations that will further enhance healthcare and lead the world to better health.

Healthcare needs creativity, innovation, entrepreneurship, courage, resilience, passion, compassion and strong leadership. Be the healthcare leader that drives innovation and entrepreneurship, has a vision that accomplishes the imaginable, and who makes it happen – and keep it happening!


Claudine Kearney is Assistant Professor of Entrepreneurship and Strategy, Graduate School of Healthcare Management, RCSI University of Medicine and Health Sciences, Ireland

Continue reading...

Levelling up, Fairness, and Efficiency

October 27, 2021

0 Comments

By Roger A. McCain

[…]
Continue reading...

The Dawn of the Information Age

October 25, 2021

0 Comments

‘It’s the beginning of the new age, it’s the beginning of the new age, it’s … , etc’. So goes the refrain of the Velvet Underground anthem that used to so intoxicate me as a teenager. Now, I would substitute ‘It’s the beginning of the information age, it’s …, etc’. This, the information age, or, in Manuel Castells’s language, the global network society, is the context for the contributions I have collated in the Research Handbook on Information Policy. (The photo on the dust jacket is meant to represent the dawn of a new age: hopefully it succeeds, or that it is at any rate a pretty cover for the library shelf or coffee table.)

[…]
Continue reading...

Comity: Multilateralism in the new cold war

October 25, 2021

0 Comments

In his new book, Frank Vibert takes the concept of ‘Comity’ as the entry point for a discussion of international rulemaking in today’s world.

‘Comity’ applies to any situation where different jurisdictions overlap in the same territorial space. This is what we have in the international space at the present time – many overlapping rules and spheres of responsibility. It is a situation often described as ‘incoherent’.

Comity is a familiar concept in legal studies where there is a long history of overlapping jurisdictions. For example, in medieval Europe there existed an overlap between the law of the king, the law of the church, the law of merchant guilds and local law.  It is less familiar in other social sciences.

I choose comity as an organising concept, not only because it aptly describes today’s world of a multitude of international regimes, but also for three further reasons.

First, the concept helps us to focus on the normative element in international rulemaking. Norms are too important to be left out. They help shape the content of international rules, the structure of international institutions and the relationships between the governments and others involved in making the rules.

Secondly, comity centres attention on the use of discretion to avoid open conflict between systems. We do not want a world in conflict but need other ways in which countries can express and defend their values. The main tool for countries to exert influence on others, short of invoking force, is through regulation. For example, the EU aims to assert its influence in the world through such instruments as its regulation on privacy (GDPR) and its proposed carbon border adjustment measure. The analysis highlights the role of ‘permissiveness norms’ as a way to reduce conflict between different regulatory systems.

Thirdly, we have reached a point in international rulemaking where global initiatives have largely stalled. We need a way out of impasse. At the same time, we cannot plausibly claim that a new world order is imminent. Comity helps us to identify a pathway.

The New Cold War.

The book starts by looking at the reason for the current impasse in international rulemaking. In the old Cold War, the impasse reflected different world views. In the new Cold War, the impasse reflects differences in the domestic structure of power – the difference between countries that are broadly democratic and those that are authoritarian and repressive.

For a long time in the post-war world, it was thought that differences in the domestic organisation of power need not stand in the way as an obstacle to moving ahead on international tasks. However, this assumption is no longer valid. It no longer holds true because we have moved to a world where transactions are driven by data, information, and content – the so-called ‘knowledge economy’.

In the knowledge economy, democracies and authoritarian regimes choose different values to apply. For democracies, values such as privacy, the probity of data and contracts, and concepts such as personhood, are vital. Repressive regimes are only concerned with government control. These differences in the choice of values to apply in today’s world spill up and over into the international arena. The knowledge economy effects all spheres of public choice – from finance, to health, to the environment.

Out of Impasse

The book identifies two main ways out of this impasse. One way is to divide large areas of concern on the international agenda, such as trade or the environment, into much smaller sub-topics. In this way issues of principle can often be avoided while agreement can still be reached on narrow specifics. I borrow a phrase, ‘disjointed incrementalism’, from political scientists writing on the policy process, to describe this option.

The analysis in the book centres on a second option. This involves limited groups of like-minded democratic countries getting together to make the rules. They can start by making the rules for themselves and then try to extend their agreement to others, leading ideally in the end to full multilateral agreement. A current example is the proposed agreement on minimum taxes for multinational corporations. Agreement started within OECD and the G7 and has now extended to the G20 and to about 135 countries in all.  The analysis concludes on why this option is to be preferred.

*****

When the Soviet Union collapsed, we hoped that we would see a world of converging global norms and much easier international rulemaking. This has not happened. Norms are not converging. Fully international rulemaking has hit a roadblock. The obstacle is that authoritarian regimes and democratic governments choose different principles to apply in rulemaking.  This book explains what we should do about it.


Frank Vibert, Associate, Centre for the Analysis of Risk and Regulation (CARR), London School of Economics, UK

Comity: Multilateralism in the New Cold War is out now

Read Chapter 1 free on Elgaronline

Continue reading...
%d bloggers like this: