Sikkelee v. Precision Airmotive Corp.: Manufacturer Can Be Sued Even Though FAA Approved Design

Here’s the pre-emption argument:

Our plane’s design was approved by the FAA.  If plaintiffs think there is something wrong with it, they should take it up with the FAA. But they should leave us alone.”  

Manufacturers make this argument in just about every aviation case we bring.  We  respond that that the FAA regulations are the bare minima only, and weren’t intended to be the last word on whether an aircraft’s design is safe. Besides, the FAA is stretched so thin that it allows many manufacturers to essentially self-certify their design work.  So in many cases the FAA stamp of approval was placed on the aircraft by someone who was actually on the manufacturer’s payroll.  How safe is that?

Sikkelee v. Precision Airmotive involved the crash of a 1998 Cessna 172.  The plaintiffs alleged the crash was caused by a defective carburetur. The manufacturers asked the court to dismiss the case against them because the aircraft engine's design was FAA-approved.  

The court noted the controversy concerning the FAA’s practice of allowing manufacturers to self-certify, but held it wasn’t really relevant.  Instead, the court agreed with plaintiffs that Congress simply didn’t intend the FAA regulations to be the last word on safety. That means that the regulations did not pre-empt state law, and the plaintiffs' tort case against the manufacturers of the plane and the plane’s engine components could proceed.

The manufacturers argued that if plaintiffs were allowed to sue over products even though they comply with all FAA regulations, it would end up killing the aviation industry.  The court had an answer for that: 

On the contrary, [our holding] simply maintains the status quo that has existed since the inception of the aviation industry, preserving state tort remedies for people injured or killed in plane crashes caused by manufacturing and design defects.”

No question that aviation manufacturers will continue to make the preemption argument going forward, as they are always looking for that sympathetic ear.  They just didn’t find one in the Third Circuit.

Sikkelee v. Precision Airmotive  

Spirit Airlines Likely Immune from Allred's Suit Alleging Airline Served Too Much Alcohol

Injured passengers have filed suit against Spirit Airlines in connection with last month’s drunken melee on board a flight from Baltimore to LAX.  The plaintiffs, represented by Los Angeles attorney GloriaAllred Sues Spirit Allred, seek to hold Spirit Airlines responsible for the conduct of the unruly passengers who injured them because Spirit Airlines allegedly fueled the flap with copious amounts of alcohol and failed to protect them from injury

Claims against ground-based barkeepers and others who over serve customers are permitted in some states.  But such suits don’t work when the defendant is an airline.  The Airline Deregulation Act of 1978 grants an airline immunity from any liability arising from the airline’s choices in connection with “routes, rates, or service.”  “Service” includes drink service.  That means that when a drunken passenger injures his fellow traveler, the airline who served the offending passenger cannot be held liable.  Gee v. Southwest Airlines.   

This case isn’t going anywhere. 

FAA To Allow Boeing To Self-Certify Its Aircraft Designs

Aviation manufacturers have long argued that victims should not be permitted to sue for aircraft design defects because, before any manufacturer's aircraft leaves the ground, its design has to be approved and certified by the FAA. If the aircraft's design is good enough for the FAA's engineers, they argue, it should be good enough for the court system.  Judges and juries should not be permitted to second guess the FAA.

Aviation attorneys representing victims of air crashes take a different position.  They argue that the FAA "approval" process is not really an independent safety review of an aircraft's design at all.  FAA Certification ProcessRather, the FAA certifies aircraft based largely on the say-so of engineers who, though designated by the FAA, are in fact employees of the manufacturer seeking the certification. The issue of whether an aircraft's design is defective is thus appropriately left to the judgment of an independent jury. In short, the fact that the FAA certified a design doesn't really mean all that much

Now FAA certification of an aircraft's design will mean even less -- at least with regard to Boeing aircraft.  That's because the the FAA will drop out of the certification process completely for certain Boeing products.  Beginning August 31, the FAA will allow Boeing to self-certify its designs. The FAA will not even do the rubber stamping -- Boeing employees will do that too. According to the Seattle Times

The new system increases the authority of the in-house inspectors directly managed by Boeing, allowing them to review new designs, oversee testing to ensure the products meet all applicable standards, and sign off on certification

Lawyer-Pilots Bar Association Conference 2009

Mackinac Island, Michigan, located in Lake Huron, is 8.2 miles around. The only way onto the island is by boat or, better yet, general aviation aircraft. No motorized vehicles are allowed on the island.  Everyone gets around by horse-drawn carriage or bicycle.  It was a great venue for the Lawyer-Pilots Bar Association’s 50th Anniversary Meeting on July 8-12.

Some conference highlights--

National Transportation Safety Board.

The NRobert Zumwalt - NTSB Board Memberational Transportation Safety Board has hundreds of employees. The Board, itself, however, consists of only 5 members. One of the members is Robert Zumwalt.   Zumwalt, who serves as the Board's vice chair, spoke to the group and gave us some useful insight into the Board’s inner workings.

Vice chairman Zumwalt also shared lessons he has learned from his work. One is that many accidents seem to follow from a “Normalization of Deviance.” Overly "relaxed" crew members begin to accept small deviations from Standard Operating Procedures as no big deal.  The deviations become the new norm.  That leads to trouble. In fact, Zumwalt says that crews who intentionally deviate from Standard Operating Procedures are about 3 times as likely to commit additional "errors of consequence."  

Jury Verdicts.

According to Insurance industry representatives: The unpredictability in jury verdicts confuses and discourages aviation business owners. Victims should not be allowed to sue unless the defendant violated a federal aviation regulation. If there is no violation, the lawsuit should be “pre-empted.” (I've discussed pre-emption previously here.) Business owners would then know exactly how to avoid liability: simply comply with the FAA regulations.

According to Plaintiffs lawyers: 95% of aviation lawsuits settle out of court because both sides agree what the likely jury verdict will be. It is only when the two sides, represented by experienced aviation lawyers, disagree on what the jury verdict will be that cases end up being tried.  By definition, then, the only cases that reach the jury are the “unpredictable” ones. Pre-emption is a bad idea because the regulations are minimum safety standards only. The regulations set the bar too low. Those involved in aviation should be held to a higher standard than the bare letter of the law. The flying public expects more when it comes to their safety.

Criminalization of Aviation Negligence

A growing trend to “criminalize” aviation negligence only hurts aviation safety. If, for example, an aviation mechanic has to worry about criminal prosecution, he will not speak with the NTSB after an accident. When the FBI gets involved, investigations tend only to grind to a halt. The best chance of finding out an accident's cause is through the civil process, not the criminal process. Both the insurance industry and the plaintiffs lawyers seem to agree on this one: criminalizing aviation negligence hinders, rather than promotes, aviation safety. (I’ve written before about criminalization of negligence here.)

Biggest Change in Aviation Law in Past 50 Years?

Possibly the General Aviation Revitalization Act, or GARA.  GARA, discussed here, bars suits against aviation manufacturers for defective products that are more than 18 years old. It has cut down on litigation tremendously, but has left many of those injured by a defective aviation product without any means of obtaining compensation from those responsible.

The trip here from the San Francisco Bay Area took about 10 hours in the Cirrus. The trip home should be a bit longer. Thanks to LPBA President Susan Hofer for overseeing a great conference.

 

Wyeth: Pre-emption and Aviation Law

For years, wrongdoers have tried to avoid responsibility for accidents they cause by arguing that, as long as they have complied with the applicable FAA regulations, they should be off the hook.  Aircraft manufacturers, for example, argue that because the FAA certified their aircraft design before it went into production, a passenger injured in one of their airplanes should not be able to sue for design defects. Maintenance facilities argue that they should be immune from lawsuits for maintenance errors unless the injured passenger proves that the mechanic violated one of the federal aviation's maintenance regulations.   

These arguments are called the "pre-emption defense."  The reasoning goes something like this:  If it's good enough for the FAA,  it should be good enough for the court system.  Courts shouldn't  be allowed to second guess the FAA.  A court should not require more of a defendant than do the regulations. 

Over the years, the pre-emption defense hasn't worked all that well for defendants.  After all, the FAA regulations themselves make clear that they are "minimum" standards only.  Recently, however, the pre-emption defense has gained traction with some courts.  For example, one federal appeals court recently ruled that airlines don't have to warn passengers about the risks of airline-induced Deep Vein Thrombosis, even though the airlines knew that warnings would save passengers' lives. The court's reasoning was that the FAA regulations cover what warnings an airline must give to its passengers.  The regulations require the airline to tell passengers how to unbuckle their seat belts, how to use the oxygen masks, and about placing their seat backs in the upright position before landing.   The regulations don't require the airline to tell passengers how to avoid DVT.  So, according to the courts, that's the end of the matter.  The airlines are off the hook.   

The US Supreme Court just put the brakes on the pre-emption defense with its decision in Wyeth v. Levine (pdf).  Wyeth wasn't an aviation case.  It was a drug case.  But the drug company in Wyeth made the same pre-emption argument that defendants make in aviation cases.  And the Court rejected it.  It  ruled that the defendant drug company was properly found liable for failing to warn about a drug's side effects.  The fact that the drug company's warnings complied with all the federal regulations was not a defense.

Wyeth is now the law of the land.   A careless defendant can't count on it's having met the bare minimum of the regulations as a sure-fire way to to escape responsibility for the harm it causes.   According to the Supreme Court, a defendant's compliance with the regulations will be a complete defense only where holding the defendant to a higher "due care" standard would frustrate the purpose of the regulations, or make it impossible for the defendant to comply with the regulations. 

The Supreme Court explained that one reason drug companies can be held to a higher standard than set forth in the regulations is because the Food and Drug Administration regulations were not intended to be the "final word" on drug safety.    Defendants will likely seize on this part of the Wyeth opinion to argue that Wyeth shouldn't apply in aviation cases.  They will point to some federal appeals court opinions that have ruled that  the FAA regulations, unlike the FDA regulations, were intended to "occupy the field." 

 

How to Survive Your Trip on the Airlines: Avoid DVT

CNN recently came up with advice on how to survive a plane crash.  Make a plan, brace yourself, know where the exits are, and so on. All good stuff.  But if you really want to increase the odds of surviving your flight, here's what you need to do: every hour, unbuckle your seatbelt, get up, and walk around for 5 minutes.  Then drink a glass of water.

The biggest threat to your health and safety on board a long-haul flight is not a crash.  It's something called "Deep Vein Thrombosis."  In plain english -- blood clots.  The clots are relatively harmless if they stay in your legs where they first develop.  But if they break off and move through your system, they can cause fatal pulmonary embolisms, strokes, or heart attacks. Walking around during your flight and staying hydrated are among the best ways to keep clots from forming.

The risk of death from blood clots dwarfs all other aviation-related risks. An airline traveler is 100 times more likely to die from an airline-induced blood clot, for example, than from all causes related to bad weather, pilot error, mechanical failure, and terrorism combined.  Airhealth.org estimates that up to 100,000 people die each year as a result of airline induced DVT.  On the other hand, less than 1000 die each year from airliners going down. 

The airlines have been aware of the risks of blood clots since the 70's. Nonetheless, the airlines have done little to spread the word. In fact, they've kind of kept the risks under wraps.  We don't expect that to change, since the courts have ruled repeatedly that the airlines have no legal obligation to warn their passengers about the risks of DVT and what can be done to avoid them

What factors contribute to formation of blood clots? Stasis -- the pooling of blood in the legs from prolonged sitting; decreased blood oxygen levels resulting from the cabin environment, bruising of deep vein in the back of the leg from prolonged term sitting (no, you can't feel it happening) , and dehydration that results from the dry cabin air.

Walking around every hour or so and remaining hydrated are good strategies for avoiding Deep Vein Thrombosis and staying safe.