The most important trend in aviation law over the past 20 years has been whether state products liability standards can apply in an aviation products liability cases. Aviation defendants have succeeded in convincing a number of courts that Congress "impliedly" preempted the entire field of aviation when it passed the Federal Aviation Act in 1958. In a recent decision a state court found that plaintiffs' state law products liability claims could not survive summary judgment because they conflicted with the certification of the aviation product at issue by the Federal Aviation Administration (FAA).

Plaintiffs argue that the federal standards are not comprehensive and that an aircraft can be both unsafe and compliant with the federal standards. A tragic example is that the FAA issued a certificate signifying that the Boeing 737 MAX complied with every federal airworthiness standard, but was forced to rescind the certificate after the Lion Air Flight 610 and Ethiopian Airlines Flight 302 disasters demonstrated that the MAX was not safe. The MAX tragedies demonstrate that the focus of manufacturers should be on designing safe airplanes rather than on airplanes that merely comply with the federal standards. See David Gelles and Natalie Kitroeff, Boeing and F.A.A. Faulted in Damning Report on 737 Max Certification, New York Times (Oct. 11, 2019).

The Supreme Court recently denied a petition for certiorari review of the Third Circuit's decision in AVCO v. Sikkelee, 822 F.3d 680, 709 (3d Cir. 2016) (Sikkelee 1), which held that the Federal Aviation Act of 1958 (FAAct) and federal aviation standards do not impliedly preempt all state products liability standards. Aviation disaster victims and their lawyers breathed a sigh of relief on learning the news because of concern that a court ruling could effectively render aviation manufacturers immune from products liability claims for defectively designed aircraft and aircraft components. The Supreme Court's decision not to accept certiorari leaves in place a sensible Third Circuit decision, which held that providing immunity for allegedly defective products to aviation manufacturers was inconstant with Congress's goal in passing the FAAct, which was to promote aviation safety.

'Sikkelee'

In July 2005, David Sikkelee was piloting a rented plane that lost power and crashed shortly after take-off in Brevard, North Carolina, killing him and severely injuring his brother. Sikkelee v. Precision Airmotive, 45 F. Supp. 3d 431, 434 (M.D. Pa. 2014).

Sikkelee's widow, alleging that the crash was due to a defect in the design of the engine's carburetor, brought Pennsylvania state-law claims against 16 defendants, including the engine's manufacturer, AVCO and its Textron Lycoming Reciprocating Engine Division (Lycoming). Lycoming designed the carburetor model, but the actual carburetor in Mr. Sikkelee's rented airplane was manufactured by Marvel-Schebler based on the Lycoming design and later overhauled by Kelly Aerospace. Id. at 439-40.

In 2010, the District Court granted summary judgment to the defendants, holding that, based on the Third Circuit's 1999 decision in Abdullah v. American Airlines, 181 F.3d 363 (3d Cir. 1999), Sikkelee's claims were field-preempted by the Federal Aviation Act of 1958 (FAAct). The District Court found that the FAAct established Congress's intent to occupy the entire field of aviation safety, thus preempting state-law tort claims. Sikkelee v. Precision Airmotive, 731 F. Supp. 2d 429 (M.D. Pa. 2010).

Sikkelee then filed an amended complaint that incorporated federal standards of care by alleging that Lycoming had violated FAA regulations, but the District Court later granted Lycoming partial summary judgment, holding that Lycoming had satisfied the federal standard of care by acquiring a type certificate from the FAA. Sikkelee, 45 F. Supp. 3d at 459-60.

On appeal, the Third Circuit held that state products liability law is not field preempted by the FAAct and reversed the decision and remanded the case. Sikkelee 1, 822 F.3d at 689.

On remand, the District Court again granted Lycoming's summary judgment on the grounds that FAA regulations made it impossible for Lycoming to unilaterally implement the design changes required by state law. Sikkelee v. AVCO, 268 F. Supp. 3d 660 (M.D. Pa. 2017). The District Court found that plaintiff's claims conflicted with federal standards because Lycoming would need FAA pre-approval to make changes to the FAA-certified design and, therefore, it was impossible for Lycoming to have changed the carburetor. On appeal, the Third Circuit again reversed the District Court's holding that Lycoming had failed to prove that it would have been impossible to change the engine's design, and that the FAA likely would have approved the proposed change. Sikkelee v. Precision Airmotive, 907 F.3d 701, 713-15 (3d Cir. 2018) (Sikkelee 2).

In March 2019, Lycoming filed a petition for certiorari to the Supreme Court. AVCO v. Sikkelee, No. 18-1140 (filed March 1, 2019). On Jan. 13, 2020, the court denied the petition, leaving it to the lower courts to decide whether and under what circumstances federal aviation standards preempt state products liability standards.

Implied Field Preemption

The FAAct assigned to the FAA Administrator the responsibility to ensure the safety of air travel in the United States. 49 U.S.C. §44701. Most relevantly the FAA is charged to prescribe "minimum standards required in the interest of safety … for the design, material, construction, quality of work, and performance of aircraft, aircraft engines, and propellers. 49 U.S.C. §44701(a)(1). Congress did not include an express preemption clause in the FAAct; instead it included a "savings clause," which states that "a remedy under this part is in addition to any other remedies provided by law." 49 U.S.C. §40120(c). Despite these indications that Congress did not intend for the FAAct to preempt state law, aviation defendants have had considerable success in arguing that Congress impliedly intended to preempt the field of aviation safety. In Sikkelee, Lycoming initially offered this now familiar implied field preemption argument and that the preempted field included products liability standards.

Field preemption occurs when Congress has "indicate[d] an intent to occupy a given field to the exclusion of state law." Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 300 (1988). Lycoming asserted that the FAAct established this intent by forming the FAA and directing it to issue minimum standards to promote the safety of aircraft and aircraft components.

Lycoming relied on the Third Circuit's ruling in Abdullah to support this interpretation of field preemption. In Abdullah, plaintiffs sued American Airlines for negligence, on the ground that the cabin crew did not warn the passengers of expected turbulence, which resulted in severe injuries. In 1999, the Third Circuit reversed the District Court's verdict for plaintiffs, holding that the entire field of aviation safety is preempted by the FAA. Specifically, the court noted that the FAA had issued regulations regarding "pilot certification, pilot pre-flight duties, pilot flight responsibilities, and flight rules." 181 F.3d at 369. For instance, operators are prohibited from acting in "a careless or reckless manner so as to endanger the life or property of another." 14 C.F.R. §91.13(a). The court found that the "promulgation of specific federal regulations" over these aspects of air safety indicates that "any state or territorial standards of care relating to aviation safety are federally preempted." Abdullah, 181 F.3d at 371.

The Third Circuit in Abdullah relied on the existence of the very specific federal standards governing operation of aircraft, including regarding warnings that aircrew are required to provide passengers, but also on 91 C.F.R. §91.13(a), a federal standard of care preventing the careless or reckless conduct in the operation of aircraft. The FAA has not promulgated a similar general standard that would govern the design and manufacture of aircraft. For example, there is no federal standard that requires that aircraft and component parts be reasonably safe or free from defects.

In 2016, in the first of its two Sikkelee decisions, the Third Circuit held that "the field of aviation safety described in Abdullah was limited to in-air operations." Sikkelee 1, 822 F.3d at 689. Because aircraft design falls outside the preempted field, "aircraft products liability cases … may proceed using a state standard of care." The court emphasized that "products liability claims are not subject to the same catch-all standard of care that motivated our field preemption decision in Abdullah; the design regulations governing the issuance of type certificates are not as comprehensive … ." Id. at 690. Lycoming's petition for certiorari was denied. AVCO v. Sikkelee, 137 S. Ct. 495 (2016). A Connecticut district court recently granted summary judgment in an aviation products liability action based on implied field preemption, despite the Third Circuit's ruling in Sikkelee 1. See Jones v. Goodrich, No. 3:12-cv-01297-WWE, 2019 WL 4760113 (D. Conn. Sept. 30, 2019).

Despite rejecting implied field preemption, the Third Circuit directed the district court on remand to analyze the claims consistent with the doctrine of implied conflict preemption, which rang the bell for round two in the preemption fight.

Conflict Preemption

Conflict preemption occurs when it is not possible to follow both federal and state laws, in which case federal law preempts state law. On remand, Lycoming again moved for summary judgment arguing that because it was not able to alter the design of the engine without FAA pre-approval, it was "impossible" to comply with the state standard of care as alleged by plaintiff. In other words, once an aircraft is certified by the FAA, unless the manufacturer may change the design of the aircraft or a component part without FAA approval, the manufacturer should be immune from potential products liability claims.

Both the plaintiff and Lycoming focused primarily on three Supreme Court pharmaceutical cases—Mut. Pharm. Co. v. Bartlett, 570 U.S. 472 (2013), PLIVA v. Mensing, 564 U.S. 604 (2011), and Wyeth v. Levine, 555 U.S. 555 (2009)—to support their respective positions on impossibility preemption. In Bartlett and PLIVA, the court held that tort claims against generic pharmaceutical manufacturers are "impossibility" preempted, because generic manufacturers are not permitted to deviate from the design and labelling of the brand-name drug on which their generic product is based without prior approval from the FDA. In Wyeth, however, there was no impossibility preemption, since brand-name manufacturers are able to make unilateral changes to their labels.

Lycoming likened aviation component manufacturers to generic drug manufacturers, in that they are not able to make any major design changes without first getting approval from a government agency. AVCO v. Sikkelee, No. 18-1140 (D. Pa. filed March 1, 2019). However, the restrictions imposed on generic drug manufacturers by the FDA are different than those exerted by the FAA, and the processes for making a design change through these two agencies are far from identical.

If a generic drug manufacturer wishes to make a design change, it must contact the FDA, which would then have to negotiate with the brand-name manufacturer about what change would be appropriate. 564 U.S. at 619. In PLIVA, the court held that design defect claims are preempted in this case because "special effort" on the part of a federal agency would be required in order for a manufacturer to make the change required by state law. Id. at 623-24.

In contrast, the process for making a change in an aircraft component design is much more straightforward. Changes are categorized as either major or minor; a manufacturer can implement a minor change without FAA pre-approval (FAA, Order 8110.4C, Change 5, Type Certification, Ch. 4-2 (2011)), while a major change requires submitting an application for a supplemental type certificate to the FAA (49 U.S.C. §44704). Even a major change does not require the FAA's "special effort," since these changes are commonplace and rarely denied. In fact, Lycoming had applied for and received FAA approval for more than 60 variations of the engine prior to the 2005 crash, most of which were approved within two weeks. See FAA, Type Certificate Data Sheet, at 3.

The district court granted Lycoming's motion for summary judgment finding that because Lycoming could not unilaterally make the design changes necessary to comply with state law, the products liability claims were conflict preempted. The ruling was staggeringly broad. The district court essentially found that in 1958 Congress implied an intent to eliminate most products liability claims despite incorporating a savings clause in the FAAct, Congress's passage in 1994 of the General Aviation Revitalization Act (GARA), which imposed a 18 year statute of repose for products liability claims involving general aviation aircraft, a limited express preemption of state law, and despite the many years of products liability litigation involving certified airplane with no action by Congress, which certainly was aware that aviation cases were being prosecuted based on state products liability standards where there were no applicable federal standards.

On appeal the Third Circuit reversed the district court a second time, finding that it was not impossible for Lycoming to comply with the state law standards despite the FAA's certification. The majority analogized the case to Wyeth, while the dissent argued that the aviation manufacturers were more like generic drug manufacturers in that the FAA must approve most design changes and the manufacturer cannot adopt a change without prior FAA approval. The majority noted that Lycoming had "made numerous changes to the type certificate … which the FAA approved in short order." Sikkelee 2, 907 F.3d at 713. Most notably, the majority held that "'immunizing aircraft and aviation component part manufacturers from liability for their defective product designs' is 'inconsistent with the Federal Aviation Act and its goal of fostering aviation safety.'" Id. at 715 (quoting Amicus Am. Ass'n for Justice Br. at 4-5).

Lycoming filed a writ for certiorari accusing the Third Circuit of disregarding the preemption framework established by the Supreme Court in the generic drug decisions, in particular PLIVA. The petition was supported by amicus curiae briefs filed by industry groups, and on June 24, 2019 the Supreme Court invited the Solicitor General to file a brief to express the views of the United States. The Solicitor General expressed the view that the writ of certiorari should be denied. The view of the United States is that state standards of care are preempted by federal law, even in products liability cases, and that "where the FAA has expressly approved a specific design aspect a plaintiff's claim that the design should have been different would conflict with the FAA's regulatory determination and would therefore be preempted." AVCO v. Sikkelee, No. 18-1140 (Sup. Ct.), Brief for the United States as Amicus Curiae, filed Dec. 9, 2019, at p. 10. The United States' position is that the Third Circuit erred in permitting the case to proceed based on allegations of a state-law standard of care, even though the FAA certified the product as compliant with the federal standards, thus endorsing the extreme view that a certification provides virtual immunity from most products liability claims. The United States opined that the case did not warrant the court's review because no court of appeals has disagreed with the Third Circuit's holding that a type certificate does not necessarily preempt aviation design defect claims under state law and that Lycoming's conflict-preemption defense would be better suited for review after further development of the record.

On Jan. 13, 2020, the Supreme Court denied Lycoming's petition, thus putting off the final reckoning and leaving the Third Circuit's rejection of implied field and implied conflict preemption undisturbed.

State Laws Make Aviation Safer

The aviation industry continues to seek court rulings that would interpret the pro-safety FAAct into a tort reform law that would undermine safety. The industry argues that exposing manufacturers to state-law liability claims would jeopardize aviation safety because it depends on the FAA being "the sole regulator of aircraft design and manufacture." Id., Brief of Aerospace Industries Association of America, Inc. as Amicus Curiae in Support of Petitioner. However, the FAA has itself acknowledged that it lacks sufficient resources to effectively oversee the design and manufacturing processes (e.g., OIG Report Number AV-2011-136, "FAA Needs to Strengthen its Risk Assessment and Oversight Approach for Organization Designation Authorization and Risk-Based Resource Targeting Programs," June 29, 2011) and the recent Boeing 737-MAX crashes have clearly shown that obtaining a type certificate from the FAA does not ensure the safety of a design. See Dominic Gates & Mike Baker, Engineers Say Boeing Pushed to Limit Safety Testing in Race to Certify Planes, Including 737 MAX, Seattle Times (May 5, 2019).

The certification by the FAA that an aircraft complies with federal standards is not a certification that the aircraft is safe. After the Boeing 737 MAX crashes, the Lion Air Flight 610 crash on Oct. 29, 2018, and the Ethiopian Airlines Flight 302 crash on March 10, 2019, the FAA charted the Boeing 737 MAX Flight Control System Joint Authorities Technical Review (JATR), which consisted of technical representatives of the FAA, NASA and aviation authorities from nine foreign nations. The FAA asked the JATR to review the work that was performed during the certification of the Boeing 737 MAX. After completing its review, the JATR recommended that that the FAA encourage manufacturers to focus on producing aircraft that are safe, rather than focusing primarily on showing compliance with the certification requirements. The JATR offered a commonsense observation that a safe aircraft will in turn comply with the certification requirements, which after all are only minimum standards. Boeing 737 MAX Flight Control System, Joint Authorities Technical Review Observations, Findings, and Recommendations Submitted to the FAA on Oct. 11, 2019. The reverse is not true; certification does not mean safe—every aircraft and component parts are certified, but not all are safe.

In recent years, the "FAA has increasingly delegated certification tasks to" manufacturers. Id. Until 2005, the FAA delegated some of its certification responsibilities to Designated Engineering Representatives (DERs) who were appointed by, and reported directly to, the FAA. 14 C.F.R. §183.29. Then, in November 2005, the FAA created the Organization Designation Authorization (ODA) program. Now, instead of inspections being carried out by FAA-appointed engineers, manufacturers were able to select their own Authorized Representatives who report to in-house managers. 14 C.F.R. §183.41-67. The ODA program allows manufacturers to exercise greater control over the oversight process that leads to the FAA's certification of an aircraft or aircraft components.

Ultimate responsibility for the safety of aviation products lies with their manufacturers, not the FAA. In United States v. Varig Airlines, 467 U.S. 797 (1984), the Supreme Court discussed the limits of the FAA's power. In determining whether the United States may be held liable for the FAA's alleged negligence under the Federal Tort Claims Act, 28 U.S.C. §2671 et seq., the court found that "the basic responsibility for satisfying FAA air safety standards rests with the manufacturer, not with the FAA." Varig, 467 U.S. at 815. Applying this principle to Sikkelee, it was Lycoming's responsibility to produce a safe product and the FAA's certification should not protect Lycoming from the consequences of failing to meet its responsibility.

State laws complement the federal scheme in that they provide incentive for manufacturers to correct design flaws and provide relief for injured parties. Because the FAA has not established a comprehensive standard of care governing the design of aviation products, accident victims have long relied on state law products liability standards (i.e., that the product be reasonably safe) to fill the holes in the federal minimum standards. In Sikkelee, Lycoming attempted to undermine this structure with its preemption defenses. With ongoing lawsuits against Boeing in the wakes of the Boeing 747 disasters, the implications could not be more apparent. Providing immunity to manufacturers based on a product certification that is conducted largely by the manufacturers themselves does not further the FAAct's goal of improving aviation safety.

Justin T. Green is a partner of, and Steven R. Pounian is of counsel to, Kreindler & Kreindler. The authors thank the firm's summer associate, George P. McGarry, for his work on this article.