United Airlines just took quite a gamble with the case of Dr. David Dao. As we’re all starting to process the bizarre video that circulated this week of the “involuntarily denied boarding” of the bumped pulmonologist dragged down the airplane aisle, things just took a turn for the legally-weird. Oscar Munoz, the CEO of United Airlines, has gone on a major apology tour. And it’s none of that typical politician-double-talk we usually see in high profile statements. It’s a real deal mea culpa, complete with promises to change United’s policy on overbooked flights.
Sure, from a public-relations standpoint, Munoz’ apology was absolutely necessary. Within twelve hours of the video going viral, everyone from Sean Spicer to Jimmy Kimmel had something to say about United’s lack of judgment. However, if we look a little closer at Munoz’ statements, they don’t exactly follow a straight path.
First, Munoz sent this letter to the United Team. In it, Munoz recapped the story in exactly the manner one would expect from the CEO of a Defendant-to-be. He admitted those facts that were basically indisputable, but he did so without acknowledging any real wrongdoing. In his characterization of the event, Munoz described how United staff “approached [Dr.Dao] to explain apologetically” that he had to de-plane, and how it was Dr. Dao who “became disruptive and belligerent.” The airline “had no choice but to call Chicago Aviation Security” to remove Dr. Dao (hint, hint – this is the part where United blames the entire incident on the law enforcement agency, and not on its own staff). According to the letter, these officers were “unable to gain his cooperation,” because Dr. Dao went “running back onto the aircraft in defiance of both our crew and security officials.”
That certainly does paint a picture somewhat different than the peaceful doctor, determined to reach his patients, who was inexplicably dragged down an aisle while being bloodied and beaten along the way. Almost on cue, stories surfaced about Dr. Dao’s shady past – from the 2003 suspension of his medical license, to his arrest and conviction for illegally prescribing Vicodin, to his current status of a one-day-per-week doctor against which multiple complaints have been filed. Oh, and he’s also a professional poker player.
All signs pointed toward United’s doing what it could to minimize the PR damage while getting ready to defend an imminent lawsuit. And then, while in flight on its damage control, United dramatically altered its course. A contrite Oscar Munoz made his way over to Good Morning America on Wednesday, and changed his tune entirely. In the interview, Munoz essentially recanted his initial statement to the United Team, and admitted, “My initial words fell short of truly expressing what we were feeling,” and that with respect to the dragging of Dr. Dao, “No one should ever be mistreated this way.” Munoz went on to practically map out a lawsuit for Dr. Dao – and that lawsuit goes beyond even the incident with Dr. Dao and throws shade on United’s entire operating manual. Munoz said that law enforcement should never be used to remove a boarded passenger, saying “we can’t do that.” He also specifically admitted that United failed to provide its personnel with proper policies and procedures, and that the entire incident was the result of a “system failure.”
From a legal perspective, this is truly bizarre. Normally, someone in Munoz’ position would characterize the treatment of Dr. Dao as an anomaly—perhaps one for which the airline still bears a degree of responsibility – but always an anomaly. United might expect to pay out in a lawsuit or settlement, but only under a theory of vicarious liability, in which an employer takes responsibility for any on-the-job wrongdoing of an employee. For United to admit that its entire system is faulty is a big deal, tort-wise. Plus, United may have had at least a partial out in this case. It could have shifted the blame to Chicago Aviation Security officers, who were the ones to actually do the dragging. Munoz’ admission that even engaging the officers was wrong is a plaintiff lawyer’s dream come true.
The real whopper came later in the interview, when Munoz was asked about Dr. Dao’s responsibility for the incident:
ABC News: “Do you think he is at fault in any way?”
Munoz responded: “No. He can’t be”
A future defendant publicly saying that the plaintiff “can’t be” responsible? That’s not something we see every day, at least not from companies that have in-house counsel. Munoz’ statements do play well on TV, and given that United suffered $255 million dollar in losses in a single day after this video circulated, it’s possible that admitting full wrongdoing and paying Dr. Dao whatever he wants is actually the safest course of action for United. Still, though, that’s not a risk very many corporate lawyers would take.
What will happen here? My bet is still on a quick settlement. However, if I were Dr. Dao or his attorneys (he’s hired high-powered Chicago personal injury lawyer, Thomas Demetrio to represent him), I would not be rushing to let United off the hook just yet.
This is an opinion piece. The views expressed in this article are those of just the author.
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