A New Standard of Care? The Third Circuit Considers FAA’s Stance on Preemption of State Law Standards in Design Defect Cases

The question of whether US federal law standards of care govern aviation product liability claims is currently being considered by the US Court of Appeals for the Third Circuit in Sikkelee v. Precision Airmotive Corp.1 In response to the appellate court’s invitation to weigh in on specific issues, the Federal Aviation Administration (FAA) recently filed an amicus curiae brief taking the position that the Federal Aviation Act of 19582 (the Act) and the Federal Aviation Regulations3 (FARs) preempt state standards of care for all state tort claims related to aviation safety. The FAA expressed the view that state common law theories of liability are preempted by federal standards of care and that, in most cases, compliance with federal design standards is established by the FAA’s issuance of an aircraft type certificate.

The Sikkelee Lawsuit

Sikkelee began in the US District Court for the Middle District of Pennsylvania when plaintiff filed suit for the death of her husband against Lycoming Engines Division of AVCO Corporation, the manufacturer of the engine installed on the Cessna 172N Skyhawk he was piloting when it crashed immediately after take-off. Plaintiff alleged that the Cessna aircraft lost power as a result of an engine fuel delivery system [carburetor] malfunction/defect, causing the aircraft and its pilot to lose control and crash. Lycoming did not manufacture the carburetor installed in the accident aircraft’s engine. However, Lycoming is the engine type certificate holder and the carburetor was compliant with Lycoming’s engine specifications. After the District Court ruled that state common law did not provide the applicable standard of care, the engine manufacturer moved for summary judgment on the ground that the FAA type certificate issued to Lycoming established that it had complied with the applicable FARs and did not deviate from the federally-established standard of care for aircraft engine design.

The District Court granted summary judgment on all but one of plaintiff’s claims of product defect, concluding, under applicable Third Circuit precedent, that the type certificate issued to Lycoming established that the manufacturer complied with the applicable federal standard.4 The District Court discussed at length Abdullah v. American Airlines, Inc.,5 in which the Third Circuit held that plaintiffs’ state law negligence claims for injuries sustained during flight were preempted by the Federal Aviation Act. When considering whether FARs governing operation of commercial aircraft preempted the state law standard of care, the Abdullah Court found that the Act and its attendant regulations impliedly preempted the entire field of aviation safety. The District Court noted some difficulty in applying the holding in Abdullah to a product liability case like Sikkelee because Abdullah relied, in part, on 14 C.F.R. §91.13(a), which provides that “for the purpose of air navigation, no person may operate an aircraft in a careless or reckless manner,” while the applicable FARs regarding the design and certification of an aircraft engine do not readily address standards of care.6 However, based on the Abdullah Court’s broad holding that “state and territorial standards of care relating in aviation safety are preempted,”7 the District Court was faced with how to apply Abdullah in the context of the product liability case before it. The Court concluded that it was bound to find federal preemption in the plaintiff’s defective design suit and that the FAA’s issuance of a type certificate to the defendant engine manufacturer satisfies the federal standards of care.8 The Third Circuit now must decide whether the District Court was correct in extending its holding in Abdullah to product liability design defect claims against an aircraft product manufacturer.

The FAA’s Position on the Scope of Federal Preemption of Aviation Safety

After the parties had fully briefed the Sikkelee appeal, but shortly before oral arguments last June, the Third Circuit requested that the FAA answer the following questions:

    1. What is the scope of field preemption under the Act? Specifically, does the preempted field include tort claims based on alleged defective design or manufacturing? Is the FAA’s position on this issue consistent with its amicus submission in Cleveland v. Piper Aircraft Corp.,9 or has it changed based on factors such as the enactment of the General Aviation Revitalization Act of 1994 (GARA),10 the increased delegation of type certificate testing, and the continued litigation of aviation products liability cases under traditional state law standards?
    2. If such tort claims fall within the preempted field, may they proceed using a federal standard of care? If so, what is that standard and where is it found within the Act or its regulations?
    3. What weight, if any, should be accorded to the issuance of a type certificate in determining whether the relevant standard of care has been met?

In its amicus brief, the FAA stated at the outset that its position that the Federal Aviation Act impliedly preempts the field of aviation safety with respect to the substantive standards of safety has not changed since the filing of its amicus brief in the 1993 Cleveland appeal. It further stated that it is the FAA’s considered opinion that federal standards govern state tort suits based on design defects in aviation manufacturing.11 The FAA confirmed that its broad view of preemption has not been altered by the 1994 passage of GARA, pointing out that GARA controls when a claim must be brought, not the law governing the claim.12

The basis for the FAA position is that the Act “impliedly preempts the field of aviation safety” because it is a broad, “all-encompassing” statutory scheme that occupies “the field of substantive safety standards.”13 Thus, all challenges concerning the safety of aircraft operation or design (“every facet of air safety and aircraft design”) must be governed by the standards set forth in the Act and the FARs, not state common law standards of care.14 The FAA cited Abdullah and other federal appellate court opinions (most of which have followed Abdullah) as support for federal preemption of the field of aviation safety standards, including product liability design claims.15

The FAA argued that its views are entitled to “significant weight” because the FAA functions as a subject matter expert on “the regulation of aircraft safety,” and it is “uniquely qualified” to assess the efficacy of federal safety regulations as well as the impact of state tort law on aircraft manufacturers.16

On the question of whether product defect claims are effectively barred under the preemption doctrine, the FAA responded that the Act’s savings clause preserves a right to seek damages under the Act and, therefore, plaintiffs can file suit in certain circumstances. However, because federal law preempts the entire field of substantive aviation standards, a plaintiff’s challenge to an aircraft design should be governed by federal standards of care.17 As to whether a state tort suit should be allowed to proceed, the FAA argued that principles of conflict preemption control. Under conflict preemption rules, a plaintiff’s state tort suit would be barred in cases where it “is a physical impossibility” for a manufacturer to comply with the type certificate requirements and the plaintiff’s claims or where the claims “stand[] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”18

In the FAA’s view, if a plaintiff’s claims involves “an aspect of an aircraft’s design that was expressly approved by the FAA as shown on the type certificate” or other FAA-approved specifications, the claim conflicts with federal standards of care and, therefore, should be barred in its entirety.19 Conflict principles preempt the claim because the manufacturer must produce the aircraft in strict accordance with the FAA type certificate and thus it would be “impossible” for the manufacturer to comply with both the controlling standards of care and those espoused by a plaintiff in a lawsuit. If the manufacturer has some level of “discretion” in the design element and the FAA has not made an “affirmative determination” as to the design at issue, the state law suit would not be in conflict with the express standards and could proceed, governed by the federal standards.20 (This position is narrower than the holding Lycoming seeks. The manufacturer has argued that once the FAA has issued a type certificate to a manufacturer, design defect claims are preempted in accordance with the doctrine of field preemption.)

Addressing the delegation issue, the FAA stated that, while it “may designate certain organizations, which may include manufacturers” to conduct certain functions during the certification process, “no matter what role a manufacturer plays in the type-certification process, the decision to approve the type design ultimately rests with the FAA.”21 Plaintiff argued in the District Court and on appeal that the FAA’s delegation to manufacturers during the certification process must limit the preemptive effect of the certification regulations and the type certificate itself and the Third Circuit raised this issue in its questions to the FAA. While acknowledging that it outsources certain functions due to “limited resources,” the FAA maintained that it ensures that any type certificate issued is in accordance with the controlling federal standards. Because all type certificates are issued pursuant to federal regulations, the certification process does not undermine the FAA’s strong view that federal law occupies the entire field of aviation safety standards.22

The Parties Respond

Sikkelee and Lycoming both submitted responses to the FAA’s position. Sikkelee argued that the FAA’s opinion should not be entitled to significant deference because it is the Court’s domain to determine whether federal law has preempted any area of state law.23 Sikkelee also contested the FAA’s assertion that the certification process is thorough and independent, positing that the FAA lacks the resources and expertise to evaluate the numerous designs presented by various manufacturers.24

Lycoming agreed with the FAA’s position, except to note that it would apply field preemption to all claims, effectively barring all product liability suits. The manufacturer argued that the FAA had presented the Court with the support to find that the holding in Abdullah should be extended to product design claims and that in the case at bar Lycoming had complied with all federal standards, as evidenced by the FAA’s type certificate issued for the engine.25

What’s Next

The FAA filed its amicus brief on September 21, 2015 and Sikkelee and Lycoming submitted their responses on October 2, 2015. As noted, the parties had already participated in oral argument in June. Therefore, unless the Third Circuit requests further briefing or argument, the Court’s decision is expected in the first half of 2016.

1 No. 14-4193 (3d Cir. argued June 24, 2015).

2 49 U.S.C.A. §§ 40101 et seq.

3 The FARs are codified under Title 14 of the Code of Federal Regulations (CFR) and are promulgated by the FAA pursuant to the Act. The FARs consist of rules and regulations that address, inter alia, the certification of aircraft as airworthy and the safe operation of aircraft.

4 45 F. Supp. 3d 431 (E.D. Pa. 2014).

5 181 F.3d at 365 (3d Cir. 1999).

6 45 F. Supp. 3d at 447.

7 181 F.3d at 376.

8 45 F. Supp. 3d. at 448-50.

9 985 F.2d 1438 (10th Cir. 1993). Cleveland involved an alleged design defect in a Piper aircraft certified by the FAA. The appellate court found that the Federal Aviation Act allows state law standards of care to govern design defect claims because the Act contains a remedies savings clause preserving litigants’ state law claims, does not expressly preempt such claims and refers to federal regulations as “minimum” standards.

10 GARA (Public Law No. 103-298, 108 Stat. 1552) amended the Federal Aviation Act to bar manufacturer liability for most defective design and manufacturing claims where the aircraft in question seats less than 20 persons and the aircraft (or component part) was delivered (or installed) at least 18 years prior to the accident.

11 FAA Letter Brief at 2 and 13.

12 Id at 13.

13 Id. at 7.

14 Id.

15 Id.

16 Id. at 9-10.

17 Id. at 10.

18 Id., citing (respectively) Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43 (1963) and Geier v. American Honda Motor, Inc., 529 U.S. 861, 880 (2000).

19 Id. at 20.

20 Id. at 11.

21 Id. at 14.

22 Id. at 14-15.

23 Response of Plaintiff-Appellant Jill Sikkelee to the FAA’s Letter Brief at 1-2.

24 Id. at 2-3.

25 Response of Defendant-Appellee AVCO Corporation on behalf of its Lycoming Engines Division at 1 and 3.