Trial News

The U.S. Supreme Court has declined to hear a case asking whether the Federal Aviation Act preempts state law aviation product defect claims. The denial of certiorari in Avco Corp. v. Sikkelee allows a Third Circuit ruling to stand that found that a plaintiff’s design defect claims against the manufacturer of an allegedly faulty aircraft engine were not preempted because the defendant was not precluded from complying with both federal and state law requirements. (Avco Corp. v. Sikkelee, No. 18-1140 (U.S. cert denied Jan. 13, 2020).)

In 2018, the Third Circuit held that “impossibility” or “conflict” preemption did not apply to the plaintiff’s state law tort claims. (Sikkelee v. Precision Airmotive Corp., 907 F.3d 701 (2018) [Sikkelee II].) This decision followed a 2016 ruling in which the Third Circuit held that federal aviation law does not occupy the field of aircraft design and that state tort law and standards of care could apply, as Trial News previously reported. However, that decision did not address impossibility preemption—that it is impossible for a manufacturer to comply with both state and federal requirements for its product. (Sikkelee v. Precision Airmotive Corp., 822 F.3d 680 (2016) [Sikkelee I].)

After David Sikkelee died in a plane crash, his wife brought strict liability and negligence claims against several defendants in Pennsylvania state court, alleging that the plane’s engine—specifically its carburetor—was defectively designed. When the engine and the carburetor were first designed in 1966, they received a “type certificate” from the FAA, which certifies that the design of an aircraft or its parts perform as intended and comply with federal aviation regulations.

After the Third Circuit allowed the case to proceed in Sikkelee I, the defendants moved for summary judgment on the ground that it was impossible to comply with both state and federal law because federal law required that the FAA approve any changes to the engine’s type certificate and design. The lower court granted summary judgment, and the plaintiff appealed again to the Third Circuit. (AAJ filed amicus briefs in support of the plaintiff in 2015 and 2018.)

In Sikkelee II, the Third Circuit held, 2-1, that impossibility preemption did not apply: The manufacturer had received permission from the FAA for previous type certificate amendments and had communicated repeatedly with the FAA about potential problems with the carburetor in the engine but did not seek agency approval to change the type certificate to deal with the carburetor’s problems. The court explained that because the manufacturer did not know that the FAA would have rejected an amendment, it could not assert that it was impossible to comply with state law as well as federal requirements.

While not asserting a bright-line rule against impossibility preemption in the aviation context, the decision made clear that impossibility preemption does not apply when a manufacturer is aware of a design defect and fails to act on it. Relying on Wyeth v. Levine (555 U.S. 555 (2009), the court concluded that although the manufacturer argued it was precluded from unilaterally changing the engine’s design, the FAA allowed manufacturers to request permission to make changes to a type certificate, and there was no evidence that the agency would have rejected a change to the carburetor’s design if it had been requested.

Defendant Avco Corp., which manufactured the carburetor at issue, filed a cert petition with the Supreme Court asking whether the Federal Aviation Act preempts state law design defect claims. The defendant argued that the statute was intended to regulate every aspect of aviation, including aircraft design, to ensure uniformity and safety nationwide and that this federal focus should overrule state tort claims. However, Sikkelee argued in response that since the early 1900s, no court other than the district court in this case has ruled in favor of a defendant on impossibility preemption in an aviation products defect case. Finding otherwise “would foreclose manufacturer liability in each and every plane crash case we have seen—whether it involves a single-engine plane or a jumbo jet—and deny all redress to the victims,” Sikkelee’s response brief explained.

Bethesda, Md., attorney Tejinder Singh, who represents the plaintiff, said, “The denial of the petition should hopefully send a signal to lower courts that the Third Circuit’s decision finding against preemption is on solid ground—because it is. Of course, because that precedent is only binding inside the Third Circuit, the question of the scope of preemption will remain open elsewhere. But hopefully courts will be encouraged to follow the Third Circuit’s lead and reject preemption arguments unless—at a minimum—defendants can show that the FAA would have prohibited them from changing their designs.”

New York City aviation attorney Justin Green said, “The denial of certiorari is good news because it leaves in place a sensible Third Circuit decision, which held that providing immunity for allegedly defective products to aviation manufacturers was inconsistent with Congress’s intent in passing the Federal Aviation Act, which was to promote aviation safety. But we can’t become complacent. We face the organized and well-funded aviation industry that is intent on securing preemption decisions that will gut the rights of aviation disaster victims. Worse, our federal government sides with the industry over the rights of victims. Fortunately, when properly educated about the lack of comprehensive federal standards, most courts, thus far, have rejected the aviation industry’s preemption arguments.”

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