On Monday at the U.S. District Courthouse in downtown San Francisco, federal judge James Donato sat an eight member jury to hear the case of Foster et al v. United Continental Holdings, Inc., et al, in which the family of Nathaniel “NJ” Foster, Jr. accused United Airlines and its contractors of negligently handling their quadriplegic and ventilator-dependent son during a February 2019 flight from Houston, Texas to Monroe, Louisiana. The alleged mishandling led to a catastrophic brain injury that placed NJ in a persistent vegetative state.
The trial was expected to last a week or more, however a confidential settlement agreement between all parties to the suit was reached prior to the resumption of proceedings on Tuesday. The jury was dismissed before rendering a verdict and, while the defendants deny responsibility, they have agreed to pay an undisclosed amount to the family.
Asked to comment on the settlement agreement, a United Airlines spokesperson said, “Our top priority is to provide a safe journey for all our customers, especially those who require additional assistance or the use of a wheelchair. We are pleased to share that this matter has settled.”
Although it is unknown whether United and the other named defendants (ExpressJet Airlines LLC and DAL Global Services, LLC) had made earlier settlement offers, a series of failed motions to exclude portions of Monday’s video testimony from the flight attendant who worked on the Foster’s flight may have discouraged the defendants from sending the decision to the jury.
That flight attendant, Rebecca White, testified that there “just wasn’t enough people” at the Monroe airport to provide the same level of assistance to help NJ Foster off the plane as he had received when boarding at United’s larger Houston hub. While an employee pushed the aisle chair, Ms. White observed that “NJ was out of the aisle chair” and that “he was sliding down” the seat before “he slid, yeah, down on the flight deck door.” It’s hardly surprising that the testimony of an airline employee (and direct observer) that questions whether NJ was properly secured in the aisle chair would cause concern among the defendants. When an aisle chair was brought into the courtroom, it’s reasonable to assume that jurors could see how a breathing tube might get caught on the securement straps of an aisle chair as a passenger slides out of the seated position.
According to an agreement between the family and court, 50% of the settlement amount will be reserved for NJ’s continued care and rehabilitation. Following the trial, NJ’s father Nathaniel Foster, Sr. shared that he hopes these resources will allow NJ to receive a higher standard of rehabilitative care that had previously been out of reach. The remaining 50% will be shared among NJ’s family members: 20% to NJ’s father, 20% to his mother, Pamela, and 10% to his sister, Natalie.
Tragedies like those that impacted the Foster family are avoidable. Had NJ Foster been seated in his own wheelchair during the flight to Monroe, there would have been no opportunity for injury during a manual transfer. Airlines have the power to dramatically improve the disabled passenger experience — and reduce or eliminate liability — by adding a wheelchair securement space to every aircraft.
The Foster family repeatedly shared with me that they don’t want the pain and suffering that they have endured to be visited upon anyone else. Most lawsuits like this one are settled outside of court and before any testimony is reflected in the official record. In this case, the public has been made privy not only to the flight attendant’s testimony that was presented in court, but also to a trove of additional depositions and evidentiary documents submitted to the court in preparation for trial. The transparency that this case brought, shining a light on the inherently inaccessible nature of commercial aviation in the United States, should serve as a wake-up call to us all, and to the industry. The status quo, characterized by widespread inaccessibility and disability discrimination, will not stand for long.
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