“This case involved more than half a dozen complex issues, thousands of pages of exhibits, two days of hearings, and many expert medical opinions whose complicated reports were fleshed out through depositions and live testimony. It is one of the most complicated cases I have been involved with during my 34 years of work,” wrote Judge Darren Otto.
In his ruling, the judge ordered all of JetBlue’s denial for claims to be “set aside,” demanded that the carrier pay Captain Myers’ hundreds of thousands of dollars in attorney fees; pay all extraordinary and reasonable expenses and costs for records, expert opinions, and witness fees; as well as a 25 percent penalty for denying the claim.
The toxic fumes incident, or more specifically, “acute chemical inhalation” and “acute toxic inhalation,” took place aboard an Airbus A320 and led to Captain Myers’ devastating health problems. His toxic encephalopathy, mild neural cognitive disorder, convergence insufficiency and saccadic eye movement deficiency, caused symptoms such as severe tremors, stuttering, confusion and migraines.
Strong, Foul Odor in the Cabin
The day before the incident, flight attendants and customers on the aeroplane Captain Myers was scheduled to fly, reported a strong foul odour in the cabin while descending for landing. A fume event was written up for maintenance to resolve.
The next day before take-off, Captain Myers and his First Officer, Dirk Murray, attempted to isolate the source of the fumes by performing three engine runs. During the first run, Captain Myers smelled the foul odour throughout the plane, but the First Officer, who remained in the cockpit, did not. During the second engine run, both smelled a very apparent, choking, burning odour like dirty socks or an oily smell.
Both immediately developed headaches began coughing and had to leave the aeroplane to get fresh air. Captain Myers fell down on the jetway and a mechanic ran up the stairs to the plane saying, “Oh my God. There’s a haze in here.”
Captain Myers and the First Officer re-entered the plane for the third engine run with the odour still strong. Captain Myers was coughing, his eyes stung and watered, the right side of his body shook with tremors, and he had mild shortness of breath, headache and congestion. He also had some numbness in his forearm and hand that resolved after a couple of days.
Captain Myers shut the engines down after the third time and instantly opened the flight deck windows to get fresh air. As the jet bridge was reattached, one of the in-flight crew members saw haze in the main cabin. Captain Myers reported what happened to maintenance, who agreed that burning oil probably leaked through an engine seal into the ventilation system. The flight was cancelled and both pilots were flown to San Francisco.
A February 22, 2017, Engineering Disposition Report confirmed that the aeroplane’s APU was cracked and leaking oil with oil contamination into the ducting – causing the fume event.
Aftermath
When he got to San Francisco, Captain Myers tried to go for a run but could not due to trouble breathing. He returned to his starting point because he became confused and couldn’t remember what hotel he was staying at. He walked around until he saw another JetBlue crew member. Captain Myers returned to his room, called Crew Services, and said he did not know if he would be well enough to fly the next day. He talked to a doctor and described the fume event, his symptoms and confusion. The doctor said to get as much fresh air and water as possible and he should be fine in the morning. The next day, he felt much better – still had a headache but no other symptoms.
During the flight from San Francisco to New York – which would be his last – First Officer Dirk Murray flew the plane and Captain Myers operated the radios. In the middle of the flight, his headache became severe again.
Over the next few months, Captain Myers experienced a barrage of health symptoms all over his body and visited dozens of doctors and specialists, undergoing rigorous, tedious testing. Three different doctors concluded that Captain Myers’ issues all stemmed from the toxic fume event.
In December, Captain Myers underwent his bi-yearly examination with FAA Medical Examiner Dr. Bass, who refused to issue a Medical Certificate and stated that his “tragic incident related to toxic fume inhalation in January 2017 has rendered him incapable of functioning in this capacity [as an airline captain].”
Months later in March, Toxicologist Mohamed Abou-Donia, PhD, performed an autoantibodies test in serum involving a sample of Captain Myers’ blood to determine if he had any nerve damage. He confirmed Captain Meyer’s “chemical-induced nervous system injury” and resulting neurological problems.
In October 2018 – over a year and a half after the fume event – Dr. Vivian Ugalde, MD diagnosed him with toxic encephalopathy, cognitive deficits, chronic headaches, dyspnea, migraine, paradoxical vocal cord movement on respiration, and vestibular disequilibrium. In addition, she believed that Captain Meyer’s persistent cognitive, neurologic and pulmonary complaints were related to residual impairment and he was not able to resume his job as an airline pilot.
At that time, Captain Myers continued to have persistent daily headaches, frequent vertigo resulting in falls several times a week, visual problems that included seeing double and difficulty focusing to read, breathing difficulties which limited his physical activity, cognitive deficits, and significant fatigue. During a typical day, he did exercises for physical strengthening, cognition, speech, vision, and vestibular problems. He also took about a dozen medications to help alleviate those problems while continuing with speech therapy, physical therapy, occupational therapy, and mental health counselling.
In spite of all this, in February 2019, two years after the fume event, JetBlue denied compensability of Captain Myer’s toxic encephalopathy on the grounds that “the condition did not exist and, if it did, the industrial injury was not a material contributing cause of that condition.”
Fact Findings
The cases’ fact findings support the TWU’s stance on the dangers of toxic fume events. Here are some of interest.
“Airplane cabin fume events are common occurrences. Hundreds occur each year, resulting in chemical exposures to tens of thousands of crew and passengers. One plane a day is diverted in the United States due to in-flight smoke events. Neurotoxicity is a major flight safety concern; especially where exposures are intense. Nevertheless, airlines appear to be more concerned about keeping planes in the air than worker safety.”
“On September 19, 2019, the United States Congress expressed its ‘deep concern’ to JetBlue Airways regarding (I) the significant number of severe fume events over the past few months, which posed a significant health risk to inflight crewmembers and passengers, (2) a disturbing pattern of fume events onboard JetBlue aircraft, and (3) JetBlue’s attempt to skirt FAA reporting standards and workers’ compensation la\VS by reclassifying ‘fume events’ or ‘cabin air safety events” as ‘odour events.’ That last concern raised significant doubt with the United States Congress regarding JetBlue’s intention to faithfully adhere to existing health, safety, and labour laws. In light of the prevalence of flight crew members developing neurological problems following toxic gas exposures on planes, JetBlue added ‘fume events’ to its required documentation.”
“The medical findings and diagnoses of conditions resulting from aircraft fume events, while significant and consistent with exposure to substances in engine fluids and too complex thermally degraded mixtures, have not been well recognized within the aviation industry. One reason is the airlines have resisted onboard monitoring of cabin air quality.”
“Also, there is a clear disincentive to report health effects when a commercial pilot’s license and career depend on good health. Thus, there has been a large under-reporting of fume events aboard commercial aircraft. In fact, it is common for pilots who have been exposed to a fume event to continue flying immediately after the event.”
“Crew members’ symptoms from single or short-term fume exposure may include blurred or tunnel vision, disorientation, memory impairment, shaking and tremors, nausea/vomiting, paresthesia, loss of balance and vertigo, seizures, loss of consciousness, headache, lightheadedness, dizziness, confusion and feeling intoxicated, breathing difficulties including shortness of breath, tightness in the chest, and respiratory failure, along with increased heart rate and palpitations, nystagmus, and irritation of the eyes, nose and upper airways. Symptoms from long-term low-level exposure or residual symptoms from short-term exposures have also included memory impairment, forgetfulness, lack of coordination, nausea/vomiting, diarrhoea, respiratory problems, chest pain, severe headaches, dizziness and feeling intoxicated, weakness and fatigue (leading to chronic fatigue), exhaustion, increased heart rate and palpitations, numbness in the fingers, lips and limbs, hot flashes, joint pain, muscle weakness and pain, salivation, irritation of the eyes, nose and upper airways, skin itching and rashes, skin blisters on uncovered body parts, signs of immunosuppression, hair loss, and chemical sensitivity.”
“Chemicals can effectively enter the body via inhalation, skin, and ingestion, with inhalation being the most effective because of the large surface area of the lung and the fact that inhaled chemicals escape the first-pass metabolism. Nerve system damage may result from a single large chemical exposure that causes neurological deficits. Nerve system damage can also result from repeated low-level chemical exposures that cause small neural injuries, which accumulate and result in neurological deficits over time. Nerve system damage is more likely when there is exposure to multiple chemicals because those chemicals compete with each other for the body’s defence mechanism with subsequent increased delivery of each chemical to the neurotoxicity target. Common neurocognitive complaints following toxic exposure events include confusion, fatigue, headache, difficulty with concentration, information processing speed, memory and learning, along with depression, anxiety, irritability, and restlessness. Those cognitive deficits may present after a brief latency period.”
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