In the Third Circuit, Preemption Does Not Mean Preemption

The United States Court of Appeals for the Third Circuit has once again considered whether state law tort claims based on defects in aviation products are preempted by federal law. This time, in a 2-1 decision, the court ruled that an engine manufacturer can be sued over a defective product design even though the aircraft’s design was approved by the FAA and the components had a valid type certificate. Sikkelee v. Precision Airmotive Corporation, No. 17-3006 (October 25, 2018).

David Sikkelee was killed in 2005 when the Cessna 172 aircraft he was piloting crashed shortly after take-off. His wife, Jill Sikkelee, brought strict liability and negligence claims under state law, arguing that the design of the engine’s carburetor was defective and caused the engine to lose power. The Plaintiff’s expert claimed that an alternate design for the carburetor would have prevented the accident, and the manufacturer’s failure to change the design, despite numerous reports of problems over many years, was negligent and violated Pennsylvania product liability standards.

The manufacturer argued that the only applicable design standards for the carburetor were the standards contained in the Federal Aviation Regulations. Because the engine received a type certificate from the FAA approving its design, the manufacturer argued that all federal standards were met. In addition, the manufacturer noted that it cannot make any changes to the design of the engine after it receives its certificate without FAA approval. As a result, the manufacturer claimed that there was a direct conflict between Federal law and any state law that would require use of an alternate design, and the state standard was preempted.

The trial judge agreed with the manufacturer and granted summary judgment. On appeal, the Third Circuit disagreed with the district court’s analysis. The Third Circuit noted that the FAA has a process for approving changes to a product that has a type certificate. In fact, the manufacturer had made changes to the design of various parts of the engine a number of times over the years, with FAA approval. As a result, the court found that it was not automatically impossible for the manufacturer to comply with a state tort law standard that required a different design, since there was an avenue open to making the necessary changes in compliance with federal requirements.

Under the Court’s analysis, it is still theoretically possible for the manufacturer to rely on this type of conflict preemption, but only in cases where the manufacturer proves that the FAA would not have approved the alternate design if the manufacturer had submitted it for review. In this case, however, the Court found that, given the FAA’s long involvement with the defect at issue, the FAA would have approved the changed design, and allowed the case to go forward.

The dissenting judge criticized this decision as a misapplication of prior precedents from the United States Supreme Court. The dissent examined a number of similar decisions on preemption involving drug labeling laws, and argued that they require a different standard. The dissent argued that the deciding fact should be whether prior approval from the government is needed for a change in design. Only in circumstances where a change could be made by a manufacturer without prior approval should a state law tort claim be permitted to proceed.

The decision by the Third Circuit to inject the laws of the 50 states into federally approved aviation product design, while not surprising, is disappointing. This issue is compounded by placing the burden on the manufacturer to prove that the FAA would not have approved the design, rather than on the Plaintiff to prove that the design change would have been adopted, essentially nullifying the part of the preemption defense the Third Circuit left open.

In light of the thoughtful analysis by the dissent, it is clear that this is a question that will have to be resolved by the United States Supreme Court.

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