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From Products Liability Law Daily, October 26, 2018

Conflict preemption defense rejected crash-related suit against aircraft engine/carburetor makers

By Georgia D. Koutouzos, J.D.

State-law strict liability and negligence claims against the manufacturers of an aircraft engine and its overhauled carburetor by the widow of a pilot who had perished in the crash of a single-engine airplane were not conflict preempted by Federal Aviation Administration regulations, a federal appeals court ruled, reversing a Pennsylvania federal court’s contrary conclusion. The trial court also erred by granting summary judgment favoring the manufacturers on the widow’s strict liability and negligence claims due to disputed issues of fact regarding causation, the panel held, nevertheless affirming the lower court’s grant of summary judgment favoring the companies with respect to her failure-to-warn-the-FAA claim because she had attempted to use a federal duty and standard of care as the basis for her state-law negligence claim (Sikkelee v. Precision Airmotive Corp., October 25, 2018, Shwartz, P.).

After the pilot of a single-engine airplane died in a crash that allegedly occurred after the aircraft lost power when the screws that held the engine’s carburetor together came loose, the decedent’s widow filed suit against the engine’s original manufacturer, AVCO Corporation’s Lycoming Engine division (Lycoming), as well as Precision Airmotive Corp., the maker of a carburetor that subsequently had been installed on the plane during its operational lifetime. According to the widow, the crash was the result of the carburetor’s faulty design for attaching the float bowl and throttle body, which resulted in the bolts’ loosening due to engine vibration, thus allowing fuel to leak out of the carburetor into the engine and causing the crash.

Lycoming moved for summary judgment on the widow’s tort claims and the trial court initially found that those claims were field preempted by Federal Aviation Administration regulations (see Products Liability Daily’sSeptember 12, 2014 analysis). That ruling was vacated and remanded on interlocutory appeal, in a decision holding that FAA regulations do not result in implied field preemption of state aviation products liability law but leaving open the possibility that the federal regulations still might override state tort law under the alternative theory of implied conflict preemption (see Products Liability Daily’s April 20, 2016 analysis).

On remand, the trial court held that the widow’s state-law claims indeed were conflict-preempted and that, even if they were not, Lycoming was entitled to summary judgment on her strict liability and negligence claims based on Pennsylvania law (see Product Liability Daily’s August 4, 2017 analysis). She appealed once more, again challenging the manufacturers’ preemption defense.

Federal preemption. The appellate panel held that the trial court erred in concluding that the widow’s claims were conflict-preempted insofar as the engine manufacturer had failed to provide clear evidence that FAA would not have allowed the company to change the engine’s design as set forth in the engine’s type certificate (a so-called FAA type certificate implies that an aircraft or component manufactured according to its approved design can be issued an airworthiness certificate).

Citing prior case law holding that state-law design defect claims against the manufacturers of generic prescription drugs were preempted because it would have been impossible for the companies to have complied with both the federally mandated label and the modified label purportedly required by state law, Lycoming argued that it could not unilaterally change the design approved in the engine’s type certificate without subsequent FAA approval. Therefore, it could not both comply with federal law and do what the widow claimed it was required to do under state law (i.e., unilaterally implement the design changes Pennsylvania law allegedly would have required), the company maintained, adding that the firm that had overhauled the engine also could not unilaterally have altered the carburetor’s design.

The appellate panel rejected that position, however, noting that in the above-mentioned pharmaceutical cases the generic drug makers were obligated to use the design and labeling of their brand-name counterparts while Lycoming was not stuck with the engine design initially adopted and approved by FAA. Indeed, the company had made numerous earlier changes to the type certificate for the at-issue engine, which FAA had approved in short order. As to the carburetor specifically, Lycoming was in communication with the agency about that component’s design, had sought to change the requirement that safety wires be used, and had obtained FAA permission to use hex screws and lock tab washers instead.

As such, the case at bar was more like other relevant precedent in which the preemption defense failed, the panel observed. Under the standard adopted in that earlier case, the engine maker had to present clear evidence that FAA would not have approved a design change in order for the company to be entitled to an impossibility-preemption defense. Lycoming could not do that because there was no evidence in the record showing that the agency would not have approved a change to the carburetor’s screws or attachment system. To the contrary, the record showed that FAA likely would have approved such a change, which also would have meant that the repair firm would not have used the same allegedly defective design when it overhauled and reinstalled the carburetor in 2004. Thus, because it was not impossible for Lycoming to have changed its allegedly defective design, the company’s conflict-preemption defense failed.

Strict liability/negligence claims. The lower court also erred in granting summary judgment favoring the engine maker on the widow’s strict liability and negligence claims, the panel held, concluding that genuine disputes of material fact remained concerning causation, among other things. The trial court should have permitted the widow’s strict liability and negligence claims to be decided by the jury because Pennsylvania law provides that whether a product is defective is a question of fact ordinarily submitted for determination to the finder of fact. Similarly, the issues of proximate causation, whether a change to the product was substantial, and whether that change was reasonably foreseeable, generally are for the jury to determine.

Here, the record indicated that reasonable minds could differ on those issues, the panel said, noting that the widow’s experts posited that the carburetor had caused the engine to fail, while Lycoming’s experts disputed her experts’ conclusions. Moreover, contrary to the engine maker’s argument, the panel explained that there are circumstances in which a manufacturer can be held liable for a component part that caused a plaintiff’s injury even when the part was made by a different entity, and particularly when that entity was required to follow the manufacturer’s design.

Failure to notify FAA. Finally, the trial court properly granted summary judgment on the widow’s failure-to-notify-the-FAA claim, the panel advised, noting that she had attempted to use a federal duty and standard of care as the basis for her state-law negligence claim. Consequently, the trial court’s grant of summary judgment favoring Lycoming was reversed, the lower court’s grant of the company’s motion for reconsideration on the widow’s failure-to-warn-the-FAA claim was affirmed, and the action was remanded for further proceedings.

The case is No. 17-3006.

Attorneys: Patrick J. Gallagher (Katzman Lampert & Stoll) for Jill Sikkelee. Sara E. Baynard-Cooke (Perkins Coie LLP) for Burns International Services Corp., Precision Airmotive LLC and Precision Airmotive Corp. Zachary J. Ballard (Salmon Ricchezza Singer & Turchi) for Electrosystems Inc. and Consolidated Fuel Systems Inc. Louis R. Bourgeois (Banker Lopez Gassler PA) for Avco Corp.

Companies: Burns International Services Corp.; Precision Airmotive LLC; Precision Airmotive Corp.; Electrosystems Inc.; Consolidated Fuel Systems Inc.; Avco Corp.

MainStory: TopStory PreemptionNews AircraftWatercraftNews DesignManufacturingNews WarningsNews DelawareNews NewJerseyNews PennsylvaniaNews VirginIslandsNews

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