submitted or approved. The letter itself was informal and not of record, and the court entered a memorandum treating it as a motion to alter or amend the judgment already entered, with argument set for October 11, 1983.
In support of his position, plaintiff filed an affidavit of plaintiff's wife, a "To Whom it May Concern" letter from a physician (neither sworn to nor certified in lieu of oath under the statute), a copy of the deposition of the purser on the flight, and another set of copies of the depositions of plaintiff and his wife, which were already in the record as part of defendant's moving papers.
As noted in the ruling, plaintiff's deposition testimony disclosed that he had developed a "hiatus hernia" a number of years before, that it occasionally "acted up" in an entirely unpredictable fashion, that he did not consult his physician before the flight on the subject, that he did not inform anyone connected with the airline about his latent condition, and that while he had been able to relieve his distress on occasions when the condition acted up, this had not been the case in June of the year before when his failure to relieve his distress had caused a hospitalization at Overlook Hospital to control some consequent internal bleeding.
None of this is denied in the opposing papers. In fact, the new affidavit of plaintiff's wife wholly ignores the experience of June of the year before as though it had never happened.
The "To Whom It May Concern" letter cannot be considered because it is not under oath or certified in lieu of oath. Even absent this defect, it would not serve to raise a genuine issue of material fact. The physician is not identified as a physician consulted for diagnosis or treatment and so the "history" recited would not be acceptable for consideration under Fed. Ev.Rule 803(4). The history he recites is not shown to have been provided by the plaintiff, and it significantly omits any reference to the hospitalization at Overlook Hospital. Thus, the opinion given, if relevant at all, would not be admissible because the facts it assumes are at odds with plaintiff's own sworn testimony. There is no effort to provide data from the regular physician, from the records at Overlook, or from the physician and hospital in New York where the later corrective surgery was performed.
Similarly, the deposition testimony of the purser discloses no genuine issue of material fact. Nothing in it so much as remotely suggests the occurrence on the flight of any event that could rationally be regarded as an "accident" from which plaintiff's claimed injury resulted. At the end of that transcript there are some sheets of what appear to be basic first aid instructions in case of vomiting. Not only is there no reference in the transcript to identify that document, but on its face it cautions against allowing a person so afflicted to lie down on his back.
Had all these materials been submitted in time for consideration before the court ruled on the motion, they would have failed to raise a genuine issue of material fact since they provide no fact basis on which a finding of an "accident" could be predicated.
Finally, plaintiff argues in the brief that defendant cannot claim application of the Warsaw Convention because the notice printed, as it appears on the coupon, is in less than 10 point type. In response, defendant observes that the coupon is only part of the entire ticket, and that on the airline ticket itself the notice is printed in 10 point type. At argument, plaintiff could not say that he had evidence to show that the notice on the ticket itself was in less than 10 point type.
For the reasons stated above, it is on this 11th day of October, 1983 ORDERED that plaintiff's motion to alter or amend the judgment be and the same hereby is denied.
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