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Court reinstates flight attendant's suit against Northwest Airlines

Posted: Friday, April 07, 2000

SAN FRANCISCO (AP) -- A tobacco trial may be on the horizon for an airline that was slower than others to ban smoking on all overseas flights.

The 9th U.S. Circuit Court of Appeals reinstated a flight attendant's damage suit against Northwest Airlines on Thursday and ruled that federal law does not protect airlines against damages for harm caused by their smoking policies.

The flight attendant, Julie Duncan of Seattle, a 27-year employee, blames secondhand smoke for breathing impairment and other ailments and seeks to represent a class of 4,000 past and present Northwest employees affected by the airline's former policy.

Flight attendants previously sued tobacco companies for exposure to secondhand smoke before 1990, when smoking was banned on domestic flights.

A nationwide suit by 60,000 flight attendants was partially settled in 1997 for $300 million to be spent on research into smoking related illnesses. Claims for individual damages remain, including a suit filed recently in Miami by 300 flight attendants.

Duncan's suit is the only one pending against an airline. Filed in January 1998, it was dismissed later that year by a federal judge who decided such claims were barred by federal law. The appeals court disagreed in a 3-0 ruling.

Northwest spokesman Jon Austin said the airline may appeal but was confident it would win if the suit ever went to trial. He said Duncan, because of her seniority, could have insisted on assignments to non-smoking flights.

Northwest prohibited smoking on domestic flights in 1988, before the ban was required by federal law, but continued to allow smoking on flights to and from Japan for another decade.

The airline said it was responding to customer preferences and competition from Japan Air Lines, which then also allowed smoking.

At the time of the suit in January 1998, Northwest was the only U.S. airline to allow smoking on any flights, Duncan's lawyer said. Northwest banned smoking on all flights seven months later. Austin said the ban was unrelated to Duncan's suit but reflected changes in Japanese passengers' attitudes.

Duncan, who still works for the airline, said in her suit that she experienced breathing discomfort, a runny nose and other problems during smoking flights and sometimes suffered for weeks after a flight. She said she had been diagnosed with ''limited pulmonary function and other chronic infections'' apparently related to secondhand smoke.

''International flights were particularly bad because they'd be on these flights for 14-15 hours and there'd be a lot of smokers,'' Duncan's lawyer, Steve W. Berman, said Thursday.

In his dismissal of Duncan's suit, U.S. District Judge Thomas Zilly cited the 1978 Airline Deregulation Act, which prohibits state regulations or suits under state laws relating to airlines' ''rates, routes or service.''

But the appeals court ruled in a separate case later in 1998 that the law applied only to the scheduling and frequency of flights and did not protect airlines from ordinary negligence suits by passengers injured by falling luggage or careless beverage service. The same principle applies to smoking, the court said Thursday.

''Allowing smoking on Northwest's trans-Pacific flights does not constitute a 'service''' because it has nothing to do with the airline's schedule or choice of destination, said the opinion by Judge Stephen Reinhardt.

The ruling returns the case to Zilly's court for further pretrial proceedings, including a decision on whether the suit can become a class action.

The case is Duncan vs. Northwest Airlines, 98-35617.

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On the Net: The ruling is at http://www.ce9.uscourts.gov



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