A Northwest flight attendant sued the airline over its policy of permitting smoking on flights to and from Japan. Duncan, a 25-year employee for Northwest, is seeking class-action certification for the lawsuit in order to include about 4000 past and present flight attendants who have worked such flights. The lawsuit accused the company of negligence since it was aware of the dangers of exposure to secondhand tobacco smoke. The suit seeks an injunction against smoking on any Northwest flight and the establishment of an employee medical fund to monitor and treat illness caused by secondhand smoke exposure. See “Attendant Sues Northwest Over Smoking on Flights to, from Japan,” Star Tribune (Minneapolis, MN), January 14, 1998, A4.
After removing the case to federal court, Northwest moved to dismiss the suit on grounds that it is preempted by the Airline Deregulation Act (ADA). The district court granted the motion, ruling that the (ADA) preempts any state regulation or lawsuit which would have the effect of imposing regulation of airline “services,” which includes the defendant’s smoking rules. Duncan moved that the Ninth Circuit Court of Appeals rule summarily in her favor in her appeal, arguing that the Ninth Circuit’s ruling in November 1998 in the case of Charas v. Trans World Airlines Inc., 160 F. 3d 1259 (9th Cir. 1998)(en banc) requires a ruling in her favor. The Ninth Circuit Court of Appeals denied Duncan’s motion on February 26, 1999 in her case, No. 98-35617.
On April 6, 2000, the Ninth Circuit Court of Appeals reversed the district court’s dismissal of the case, at 208 F.3d 1112, 15.2 TPLR 2.244, 2000 U.S. App. LEXIS 6228, holding that it was not preempted by the ADA. Specifically, the court ruled that the airline’s smoking rules are not included the term “services,” as used in the ADA. The Court followed the Charas analysis of the scope of the ADA’s preemption language. See Cooper, C., “Court Allows Flight Attendants’ Smoking Suit,” Sacramento Bee, April 7, 2000. The case is remanded. On December 11, 2000, the United States Supreme Court voted 6-3 not to hear Northwest’s appeal. See “Court Allows Suit Over Airline Smoke,” Newsday, December 12, 2000, page A56; “Court Won’t Hear Airline Appeal in Secondhand Smoke Case,” Boston Globe, December 12, 2000, page A10; and Bradford, M., “Airline Smoking Suit to Proceed,” Business Insurance, December 18, 2000, page 34.
On November 4, 2001, the District Court ruled, at 203 F.R.D. 601, 2001 U.S. Dist. LEXIS 18276, 16.8 TPLR 2.506 that there was no cause of action for medical monitoring as an independent tort under state law. Thus, the Court granted the company’s motion for summary judgment. Plaintiffs “with a present injury may seek medical monitoring as a remedy to a negligence cause of action under existing Washington law.” Also, the Court ruled that the proposed class failed to meet the predominance requirement of Fed. R. Civ. P. 23(b)(2) because, in determining causation and present injury for each member of the proposed class, the jury’s decision would turn on each flight attendant’s individualized facts.
King County (WA) Superior Ct. No. 98-2-01158-1SEA (1998).