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Sunday, March 29, 2020

SCOTUS asked to review whether state laws, not federal, should apply to aviation industry

By Robert Lawson | Nov 23, 2016

General court 01

PHILADELPHIA — An aircraft pilots association is asking the U.S. Supreme Court to reverse a decision from the U.S. Court of Appeals for the Third Circuit that allowed states to impose their own safety standards in place of federal law.

An amicus brief from the Aircraft Owners and Pilots Association (AOPA) asks the court to overturn a previous decision that provided for states to apply their own standards of care to the field of aviation product liability.

AOPA is asking the high court to rule that the Federal Aviation Administration should have sole authority to regulate such standards of care, not states. AOPA aligned with aviation manufacturers to make its case.

Outside this case, AOPA's alignment might seem counterintuitive, Robert Bowman, an attorney at Cozen O'Connor, pointed out.

"I found this AOPA brief interesting, because they help and support pilots, but in this case they came out in favor of manufacturers," Wallace said.

"You would think they would support the pilot who died, but they supported the manufacturers in this instance due to the nature of the claims and the considerations for regulation within the industry. I think the Supreme Court will take note of that.

"Another reason is the circuit split. That also makes it more likely for the Supreme Court to grant review."

The case dates back to the early to mid-2000s. In Sikkelee v. Precision Airmotive Corp., the Third Circuit held that state design standards could be applied to determining aviation product liability, whether or not the FAA already approved and certified the design.

Critics of the decision say it puts compliance with FAA regulations in a vulnerable position because there is too much overlap and possibility for conflict between state and federal guidelines.

The lawsuit stems from a Cessna 172N crash in 2005, in which the pilot, David Sikkelee, died after a loss of power occurred in the craft shortly after takeoff. Prior to the failure, the FAA issued a type certificate to the Cessna manufacturer for the new engine design. To comply with the FAA, the manufacturer added a new carburetor as part of an overhaul of engines from 2004 to meet the type certificate standard for the Lycoming O-320-D2C engine.

The plaintiff alleged a “malfunction or defect” in the new carburetor and that this caused the loss of power in the aircraft. The plaintiff argued that this is what led to the death of the pilot. The key point in the complaint is that the claims applied state law standards of care. Those included strict liability, negligence, breach of warranty and misrepresentation.

The FAA and the General Aviation Manufacturers Association (GAMA) both filed similar briefs, so folks in the aviation industry are more closely monitoring the case. Odds are slim for the case to be heard because the Supreme Court grants only about 1 percent of all certiorari petitions for review, but AOPA’s involvement may change that in this case.

"If the Third Circuit ruling stands, especially for manufacturers, it is going to be very difficult to comply with both state and federal standards," Wallace said.

"To make a change to a part or design, the manufacturer would need approval from the FAA. If a state requires that the design be changed somehow, but there is no approval from FAA, the manufacturer literally cannot meet the standards of the FAA.

"There is a major potential for problems with liability. AOPA argued that it's a problem for pilots because they're also held to safety standards, though it is less clear than the issue is for manufacturers." 

AOPA cited Congress' intentions in creating the FAA. How much does this factor into courts' decisions?

"I think this case, if they accept review, the entire case will turn on the Supreme Court's review of their intentions; if they intended to preempt the entire field of aviation safety, the states can't make their own standards," Wallace said.

"I think its going to factor a lot into the decision. Here, the statute is unclear related to aviation safety. Did Congress intentionally take that power from the states for safety standards in aviation? Up until now, the courts took a broad view. This case represents a bit of a change. Now different circuits are deciding in different ways."

The Sikkelee case has gone on for more than a decade now and has not yet had a significant effect on the commercial aviation industry, but only for lack of opportunity at this point, according to Wallace.

"They've certainly watched closely since 2012," Wallace said. "It was only in 2012 when the Third Circuit made the ruling and it has been appealed. It hasn't had too much of a chance to have an effect yet.

"There are other courts dealing with this issue and watching to see how it turns out. It has a potential of having a significant effect if the petition is not granted. I'm sure we'll see a lot more issues around this if it is not granted, but it hasn't been around long enough."

David Kirstein, an attorney at Kirstein & Young who has served as general counsel Civil Aeronautics Board and counsel to the Senate Aviation Subcommittee, agrees with the AOPA's stance that federal design standards should preempt state safety standards.

"The Third Circuit’s conclusion in Abdullah v. American Airlines referenced in the AOPA brief should apply to manufacturing. The certification process of a new aircraft under FAA regulations is very complex and it typically takes several years for a new aircraft design to obtain certification," he said.

"Each state imposing its own design standard after an accident would make it impossible for manufacturers to comply with those standards, which could be different from other states as well as those of the FAA, which has the greatest expertise and to which Congress has given the sole authority to issue type certificates for aircraft that meet FAA safety standards."

Kirstein believes the Supreme Court should take on review of the case. 

"While the Supreme Court does not hear many cases, this should be one that it considers," Kirstein said.

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