The Supreme Court Turns Down Sikkelee, but Federal Preemption Remains a Clear and Present Danger to the Civil Justice Rights of Aviation Disaster Victims
May 1, 2020
By: Justin T. Green
(reprinted from the AAJ - Aviation Law Newsletter)
The Supreme Court recently denied a petition for certiorari review of the Third Circuit’s decision in AVCO Corp. v. 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. 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 inconsistant with Congress’s goal in passing the FAAct, which was to promote aviation safety. Great news? Yes! But let’s not become complacent because: (1) Sikkelee was a close call — it was a 2-1 decision with a strongly argued dissent; (2) we face an organized and well-funded effort by the aviation industry to secure preemption decisions that will gut the rights of aviation disaster victims; and (3) the United States government supports the industry’s efforts. Sikkelee provides valuable lessons to lawyers facing off against aviation manufacturers.
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.2 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 Corporation 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, Inc.3
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, Inc.,4 Sikkelee’s claims were field preempted by the 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.5 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.6
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.7
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.8 The District Court found the 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.9
In March 2019, Lycoming filed a petition for certiorari to the Supreme Court.10 On January 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 U.S.11 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.12 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.”13 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.”14 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.”15 For instance, operators are prohibited from acting in “a careless or reckless manner so as to endanger the life or property of another.”16 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.”17
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.”18 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….”19 Lycoming’s petition for certiorari was denied.20
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 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,21 PLIVA, Inc. v. Mensing,22 and Wyeth v. Levine23 — 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.24 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.25 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.26
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-approval27, while a major change requires submitting an application for a supplemental type certificate to the FAA.28 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.29
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 an 18-year statute of repose for products liability claims involving general aviation aircraft, limited express preemption of state law 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.”30 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.”31
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.”32 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 January 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 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.”33 However, the FAA has itself acknowledged that it lacks sufficient resources to effectively oversee the design and manufacturing processes,34 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.35
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 October 29, 2018, and the Ethiopian Airlines Flight 302 crash on March 10, 2019, the FAA chartered 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 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 common sense observation that a safe aircraft will in turn comply with the certification requirements, which after all are only minimum standards.36 The reverse is not true; certification does not mean safe — every aircraft and component parts are certified, but not all are safe.
State law products liability standards complement the federal scheme established by the FAAct. 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. The FAAct is a pro-safety law, not a tort reform measure. We cannot let the aviation industry, with its capable lawyers and allies in our government, succeed in perverting Congress’s intent and undermining the civil justice rights of aviation disaster victims.
Justin T. GreenJustin Green serves as the Co-Chair of the Plaintiffs’ Executive Committee for the ongoing litigation against Boeing Co. following the 2019 crash of the Boeing 737 Max in Ethiopia. Justin is a prominent Aviation Analyst for CNN and is featured in dozens of on-air TV news segments regarding the Boeing 737 MAX disaster. Having authored many influential articles and CLE courses, Justin is seen as an authority on aviation law and is often invited to speak before legal organizations across the country.
- AVCO Corp. v. Sikkelee (“Sikkelee 1”) 822 F.3d 680, 709 (3d Cir. 2016).
- Sikkelee v. Precision Airmotive Corp., 45 F. Supp. 3d 431, 434 (M.D. Pa. 2014).
- Id. at 439-40.
- Abdullah v. American Airlines, Inc., 181 F.3d 363 (3d Cir. 1999).
- Sikkelee v. Precision Airmotive Corp., 731 F. Supp. 2d 429 (M.D. Pa. 2010).
- Sikkelee, 45 F. Supp. 3d at 459-60.
- Sikkelee 1, 822 F.3d at 689.
- Sikkelee v. AVCO Corp., et al., 268 F. Supp. 3d 660 (M.D. Pa. 2017).
- Sikkelee v. Precision Airmotive Corp. (“Sikkelee 2”), 907 F.3d 701, 713-15 (3d Cir. 2018).
- AVCO Corp. v. Sikkelee., No. 18-1140 (filed Mar. 01, 2019), https://www.supremecourt.gov/docket/docketfiles/html/public/18-1140.html.
- 49 U.S.C. § 44701.
- 49 U.S.C. § 44701(a)(1).
- 49 U.S.C. § 40120(c).
- Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 300 (1988).
- 181 F.3d at 369.
- 14 C.F.R. § 91.13(a).
- Abdullah, 181 F.3d at 371.
- Sikkelee 1, 822 F.3d at 689.
- Id. at 690.
- AVCO Corp. 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 Corp., No. 3:12-cv-01297-WWE, 2019 WL 4760113 (D. Conn. Sept. 30, 2019).
- Mut. Pharm. Co. v. Bartlett, 570 U.S. 472 (2013).
- Pliva, Inc. v. Mensing, 564 U.S. 604 (2011).
- Wyeth v. Levine, 555 U.S. 555 (2009).
- AVCO Corporation v. Sikkelee, No. 18-1140 (D. Pa. Filed Mar. 1, 2019).
- 564 U.S. at 619.
- Id.at 623-24.
- FAA, Order 8110.4C, Change 5, Type Certification, Ch. 4-2 (2011).
- 49 U.S.C. § 44704.
- See Type Certificate Data Sheet, FAA, at 3, http://www.airweb.faa.gov/Regulatory_and_Guidance_Library/rgMakeModel.nsf/0/7bfb5a7ace53d4c486257085006e9e7b/$FILE/E-274.pdf.
- Sikkelee 2, 907 F.3d at 713.
- Id. at 715 (quoting Amicus Am. Ass’n for Justice Br. at 4-5).
- AVCO Corp. v. Sikkelee, No. 18-1140 (Sup. Ct.), Brief for the United States as Amicus Curiae, filed December 9, 2019, at p. 10.
- Id., Brief of Aerospace Industries Association of America, Inc. as Amicus Curiae in Support of Petitioner.
- See 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.
- 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).
- Joint Authorities Technical Review, Boeing 737 MAX Flight Control System Observations, Findings (Oct. 11, 2019), www.faa.gov/news/media/attachments/Final_JATR_Submittal_to_FAA_Oct_2019.pdf.