United States: Recent Developments In Aviation Products Liability

This article^{1 addresses selected topics of current interest and recent developments in the field of aviation products liability.}2 The cases and legislation discussed below touch upon a wide variety of topics, including: pleading requirements arising out of Iqbal and Twombly; the General Aviation Revitalization Act of 1994 (―GARA‖); federal preemption; the government contractor defense, the educational malpractice doctrine and duty to train; the recently enacted Federal Courts Jurisdiction and Venue Clarification Act of 2011; and removal of aviation products liability cases based on federal question jurisdiction. To conclude, we briefly address recent developments in electronic discovery that have the potential to alter case strategy and the landscape of the cost of defending aviation products liability and commercial litigation cases.

I. Pleading Requirements After Iqbal and Twombly

The United States Supreme Court decisions of Bell Atlantic Corporation v. Twombly³ and Aschcroft v. Iqbal ⁴ and their progeny have altered the interpretation of the liberal pleading requirements of the Federal rules in ways that can be of benefit to aviation manufacturers. This section discusses two recent cases that address what it now means to ―state a claim to relief that is plausible on its face.‖⁵ At a minimum, plaintiffs must sufficiently identify the component or components that are claimed to be defective, the manner in which the components failed, and who is responsible for the failure.

Sikkelee v. Precision Airmotive Corp., No. 07-886, 2011 U.S. Dist. LEXIS 38382 (M.D. Pa. Apr. 8, 2011).

Sikkelee v. Precision Airmotive Corporation⁶ involved a Complaint against many Defendants for strict liability, negligence, breach of warranty, misrepresentation, and concert of action related to a 1976 Cessna aircraft accident that resulted in the death of plaintiff's husband. The accident allegedly was caused by a malfunctioning carburetor. On July 10, 2005, the decedent was flying the accident aircraft when its Lycoming engine allegedly lost power due to a fuel system malfunction shortly after takeoff. The aircraft had been overhauled ―to a factory new condition,‖ which included a carburetor rebuilt or overhauled by the Kelly Defendants. Among other things, Plaintiff asserted that Defendants were aware of numerous problems and defects with the screws and locking mechanism for the carburetor, but failed to disclose that information. Defendants filed a joint motion for judgment on the pleadings, which was granted in part, as to allegations about state common-law standards of care, since the Court found that the field of aviation safety is preempted by federal law and regulations. However, the Court also granted Plaintiff's request for leave to amend the complaint to assert violations of federal standards of care.

Defendants' subsequent motion to dismiss Plaintiffs' amended complaint asserted, among other things, that Plaintiff had failed to allege that Lycoming had manufactured, sold, or supplied the allegedly defective parts. Plaintiff argued that Twombly and Iqbal should not apply to the Amended Complaint since the original Complaint was filed before those cases were issued. Disagreeing with the Plaintiff, the Court applied the heightened pleading standards set forth in Twombly and Iqbal. As to Lycoming, the Court held that although Plaintiff alleged the collective responsibility for the carburetor by other parties, she also provided numerous detailed allegations which supported a claim that Lycoming was the manufacturer (or was in the chain of production) of the carburetor.⁷

Am. Guar. & Liab. Ins. Co. v. Cirrus Design Corp., No. 09-8357, 2010 U.S. Dist. LEXIS 137527 (S.D.N.Y. Dec. 30, 2010).

American Guarantee & Liability Insurance Company, v. Cirrus Design Corporation⁸ involved claims seeking to recover money that was paid to tenants of the Belaire Manhattan Condominium after a Cirrus aircraft had crashed into the building. The crash allegedly was caused by ―certain defects‖ in the steering controls that prevented proper control of the airplane. Cirrus argued that the insurance companies had not stated a claim upon which relief could be granted, and sought dismissal of the complaint. The Court granted the Cirrus motion, noting that the plaintiffs had not specified ―....the actual defective component or the nature of the defect.‖⁹ Accordingly, to satisfy the plausibility requirement set forth in Twombly and Iqbal, plaintiffs' amended complaint would have to state specific allegations as to the alleged airplane defects.

II. General Aviation Revitalization Act of 1994

As discussed below, there continue to be significant developments related to the application of the General Aviation Revitalization Act of 1994, Pub. L. No 103-298, 108 Stat. 1552 (1994) (codified as amended at 49 U.S.C. § 40201 et seq.).

Burton v. Twin Commander Aircraft, LLC, 254 P.3d 778 (Wash. 2011).

After an airplane crash in Aguascalientes, Mexico that killed seven people and allegedly was caused by a rudder malfunction, Plaintiffs brought wrongful death actions against Twin Commander. Plaintiffs argued that although Twin Commander held the Type Certificate for the accident aircraft, it was not the ―manufacturer‖ of the aircraft and thus not protected by GARA. Twin Commander argued that for GARA purposes, it was the ―manufacturer‖ because it was the successor-in-interest to the Type Certificate even though it did not continue producing the aircraft. The Court concluded that the meaning of ―manufacturer‖ under GARA is a question of law and not fact. In a well reasoned opinion, the Court reversed the Court of Appeals and held that Twin Commander should be considered a ―manufacturer‖ under GARA since it stepped into the shoes of an original manufacturer and assumed all its duties and obligations.¹⁰

Crouch v. Teledyne Continental Motors, Inc., No. 10-00072, 2011 U.S. Dist. LEXIS 67722 (S.D. Ala. June 22, 2011).

Crouch v. Teledyne Continental Motors¹¹ addressed claims made as a result of a 1977 Piper PA-32RT-300 Lance II Cherokee single-engine airplane crash in 2006 that allegedly was caused by defects in the housing of a recently overhauled Lycoming IO-540-K1G5D engine and Teledyne Continental Motors, Inc. (―TCM‖) magneto. The airplane originally was sold in 1978, and the engine was overhauled in April 2005 by John Jewell Aircraft, Inc. Additionally, at the same time the engine was overhauled, the TCM magneto was replaced with the same type of magneto—and which had been factory rebuilt by TCM in 2005. Plaintiffs asserted that due to defective design, the mounting flanges on the TCM magneto housing broke as a result of fatigue fractures in the flanges, which caused the Cherokee to lose power and crash. The manufacturer argued that GARA prevents the Plaintiffs from asserting claims based on the alleged defects and that GARA's 18-year rolling provision for new parts should not apply, because the allegedly defective part was replaced with one of materially the same design, and because the fractures were the result of crash impact, and not fatigue. In denying TCM's motion for summary judgment, the Court cited the plain language of GARA's rolling provision and held that the time period for GARA is restarted when an old part is replaced with a new one, and that GARA did not require that a part be newly designed. The Court further held that since a genuine dispute of material fact existed as to the cause of the crash, TCM's motion for summary judgment relating to causation also would be denied.¹²

Agape Flights, Inc. v. Covington Aircraft Engines, Inc., No. 09-492, 2011 U.S. Dist. LEXIS 69521 (E.D. Okla. June 28, 2011).

Agape Flights, Inc. v. Covington Aircraft Engines, Inc.¹³ involved claims against an aircraft engine and fuel pump manufacturer as a result of a Cessna Grand Caravan model 208B airplane crash in 2007. In 2007, Agape rented the Pratt & Whitney Canada (―P&WC‖) PT6A-114A engine, which included a Sundstrand fuel pump, from Covington Aircraft Engines, Inc. Agape asserted that the crash was caused by the fuel pump drive shaft splines being severely worn, which allegedly resulted in an in-flight engine power loss. The Court ruled that plaintiff's claims against P&WC and Sundstrand were barred by GARA because both the engine and fuel pump had been sold and delivered to the aircraft manufacturer beyond the 18-year statute of repose. Moreover, although Agape's facts suggested that the drive gear might or should have been replaced given historical data of wearing of the drive gear splines, the Court held that GARA's rolling provision did not apply since it was Agape's burden to show that the rolling provision should apply. Moreover, plaintiff offered no maintenance record or other similar document which could establish that the fuel pump (or its components) had been replaced within 18 years of the mishap.¹⁴

Scott v. MD Helicopters, Inc., No. 8:09-986-T-33TBM, 2011 U.S. Dist. LEXIS 74778 (M.D. Fla. July 11, 2011).

Scott v MD Helicopters¹⁵ involved a lawsuit arising from a military OH-6A helicopter crash in 2007 that allegedly was caused by malfunctioning helicopter rotor blades and associated parts. Plaintiff argued that MD Helicopter (―MDHI‖), as the type certificate holder, had a duty under the Federal Aviation Regulations to provide instructions and maintenance manuals for continued airworthiness. MDHI filed a motion for summary judgment, which was granted in part and denied in part. As to GARA, the Court held that since maintenance manuals are not considered ―parts,‖ claims based on maintenance manuals are not barred by GARA. The Court also held that a genuine issue of material fact existed as to the extent of any regulatory duty MDHI owed to provide instructions for continuing airworthiness.¹⁶

Garcia v. Wells Fargo Bank Northwest, N.A., No. 10-00072, 2011 U.S. DIST. LEXIS 143900 (S.D. Fla. Dec. 14, 2011).

Garcia v. Wells Fargo¹⁷ is a case that addressed the distinction of parts sellers vice GARA protected parts manufacturers. Garcia arises from a Cessna Model 650 Citation III crash in 2008 that killed three people. In 2006, Cessna sold an Actuator Control Unit (―ACU‖) to the Citation's maintainer, Southern Jet Center, who then installed the part in the mishap aircraft. Plaintiff brought suit against Cessna for negligence and strict liability as the manufacturer, designer, and seller of the Citation and its respective components. Plaintiff claimed that the crash was caused by a malfunctioning ACU, which provides warning to the aircrew when a runaway trim condition exists. According to the plaintiff, the alleged malfunction prevented the pilot from properly responding to an emergency runaway trim condition. Cessna asserted a number of affirmative defenses, including GARA, arguing that the protections of GARA apply since even though Cessna did not manufacture the ACU, the sale of the ACU was incidental to its role as the airplane manufacturer. Cessna further asserted that it had an ongoing duty to provide replacement parts and that the crash was caused by pilot error, and not a mechanical failure. The Court granted plaintiff's motion for partial summary judgment and denied Cessna's motion for summary judgment, holding that GARA is inapplicable where a Defendant is sued in the capacity of a seller, rather than as a manufacturer. The Court reasoned that the legislative intent of GARA was not to make a special exception for airplane manufacturers who then sell replacement parts, but that ―[GARA's]...protections begin and end with a Defendant's role as a manufacturer.‖¹⁸

Moore v. Hawker Beechcraft Corp., No. N09C-12-010, 2011 Del. Super. LEXIS 569 (Del. Super. Ct. Dec. 15, 2011).

Moore v. Hawker Beechcraft¹⁹ arises from a Beechcraft model 69 Duke aircraft accident in 2007, which allegedly was caused by an asymmetric flap condition. The mishap aircraft was manufactured in 1969 and sold in 1970. According to the plaintiff, the knowing misrepresentation exception to GARA applied because the manufacturer allegedly had knowingly misrepresented, concealed, or withheld required information concerning the flaps from the FAA during the airplane's initial certification. Specifically, the plaintiff asserted that Hawker Beechcraft misled the FAA by incorrectly representing that the flap system was interconnected. Plaintiff also argued that Hawker Beechcraft failed to disclose: (1) that the flap system was prone to disengagement; (2) that the Duke was uncontrollable in a right side split flap condition; and (3) that information on how to cope with an unsafe flap condition in its Pilot's Operating Handbook or Airplane Flight Manual purposefully was omitted. Moreover, plaintiff contended that it was important to have done different or additional flight testing on the flap system. The Court noted that plaintiff's flight testing assertions on the flap system were irrelevant for purposes of a misrepresentation claim, and that since the plaintiff was not able prove that a new part—a 90 degree flap drive—was added within the 18-year statute of repose, Plaintiff's motion for summary judgment should be denied. Additionally, the Court held that pursuant to GARA's Section (2)(b)(4), the 18-year statute of repose does not apply to actions brought under a written warranty and that an airworthiness certificate does not constitute a written warranty under GARA.²⁰

Nowicki v. Cessna Aircraft Co., 69 So. 3d 406 (Fla. Ct. App. 2011).

In Nowicki v. Cessna,²¹ strict liability and negligence claims that were brought on behalf of a passenger that was killed in a Cessna Model 414 crash were barred under GARA. The passenger's representative argued that although the airplane had crashed because of insufficient fuel, the actual cause of her spouse's death was a defective passenger seat that had detached from its rails on impact, hitting him in the head. The representative argued that although the manufacturer had manufactured and delivered the plane in 1970 (beyond the period allowed for claims under GARA's statute of repose), the claim should be permitted under GARA's fraud exception. In the representative's view, since the manufacturer allegedly had not disclosed to the FAA an airworthiness directive pertaining to the seat rail and locking mechanism for crew seats, GARA's fraud exception applied to her claim. The Court found that the representative's claims should be barred by the 18-year statute of repose because the airworthiness directive applied to crew seats as opposed to passenger seats. The Court also held that GARA's fraud exception did not apply since the manufacturer had not misrepresented, concealed, or withheld required information concerning the airplane's passenger seats.²²

United States Aviation Underwriters, Inc. v. Nabtesco Corp., No. C10-821Z, 2011 U.S. Dist. LEXIS 46889 (W.D. Wash. Apr. 29, 2011).

In U.S. Aviation Underwriters, Inc. v. Nabtesco Corporation,²³ a Washington federal court barred claims against the manufacturer of an allegedly defective landing gear actuator that had been removed from the Cessna aircraft on which it originally was installed, and then was installed on another aircraft. The actuator initially was manufactured and installed on an aircraft in 1990, then was removed, overhauled, and installed on another aircraft in 2006—which then crashed in 2007. The Court analyzed the effective triggering date under GARA and determined that the 18-year statute of repose had run. According to the Court, the triggering date under GARA is the date from which the component(s) were originally installed (1990), as opposed to when the part was overhauled and later installed. Moreover, the Court emphasized that an overhauled component (vice a new one) does not restart the GARA repose period.²⁴

Inmon v. Air Tractor Inc., 74 So. 3d 534 (Fla. Ct. App. 2011).

Plaintiff in Inmon v. Air Tractor Inc.²⁵ sued Air Tractor, the manufacturer of an aircraft that he had been flying and using for crop dusting, when one of the aircraft's wings failed and caused him to crash. The plane had been manufactured in 1982 and was purchased by the plaintiff with no warranty in 1998. Plaintiff alleged that the crash was caused by a defective wing assembly and a defective factory modification kit. The primary issue was whether Air Tractor's design and sale of a new part for the wing in 1993 restarted the GARA or the applicable Florida repose period. To increase the safe life of the airframe, the manufacturer had issued Service Letter 70. Service Letter 70 illustrated how designing a new spar splice with an additional fifth bolt hole further out from the centerline of the aircraft, and installing it on the existing lower wing, would help extend the safe life of the airframe. The Court addressed whether the aircraft manufacturer's design and sale of the new part for the wing assembly in 1993—the five-bolt spar splice—restarted GARA or the applicable Florida 12 year repose period. The Florida Court of Appeals affirmed the earlier decision by the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County, dismissing plaintiff's claims, holding that (1) service bulletins do not constitute new part(s), and (2) even though a new part was installed, it did not replace an original item with a new item, but rather modified the original design.²⁶ The Court also found that the plaintiff had failed to demonstrate that the new part actually caused the accident.

Moyer v. Teledyne Continental Motors, Inc., 979 A.2d 336 (Pa. Super. Ct. 2009).

Moyer v. Teledyne Continental Motors, Inc.²⁷ is a case that arises from a 2003 Beech Bonanza crash that resulted in the deaths of Ronald and Judy Moyer. According to the Plaintiffs, the airplane crash was caused by an engine failure that was the result of a fatigue crack in a repair weld in the crankcase of the Teledyne Continental Motors (―Teledyne‖) designed and manufactured engine. The crankcase was a weld-repaired replacement that was supplied by a company called DivCo, and then was installed in the accident aircraft by Piedmont Aviation Services (―Piedmont‖) in 1998. Teledyne also issued maintenance instructions and service bulletins—including multiple service bulletin revisions—which provided inspection criteria for the welding of cracked crankcases, as well as warning against the welding of cracks in certain areas. In a service bulletin issued in 1990 (the guidance used by DivCo in making its weld repair), Teledyne modified prior guidance and advised that the welding of crankcases was an acceptable repair process under certain circumstances.

Plaintiffs argued that Teledyne was responsible for product defects due to crankcase cracks, that the 1990 service bulletin was inherently defective, and that contrary to Teledyne's assertions in its motions for summary judgment, GARA should not apply. Plaintiff contended that the statutory protections of GARA should not be available to Teledyne because (1) it allegedly had publicly misrepresented its internal policy regarding crankcase welds, and (2) the issuance of the 1990 service bulletin restarted the 18-year statute of repose because it should be considered a ―part‖ under GARA.

On May 29, 2007, the trial court granted Teledyne's summary judgment motion under GARA. The trial court held that the 18-year GARA repose period began to run on the original date of sale of the engine, rather than on the date when the allegedly defective service bulletin was issued. The Court further noted that a service bulletin is not considered a part for GARA purposes, and that the misrepresentation exception to GARA was not applicable because there was insufficient evidence to show that Teledyne had misrepresented or withheld required information from the FAA.

The Pennsylvania Superior Court, ultimately in an en banc opinion, affirmed the trial court's decision not to apply GARA's rolling provision to the service bulletin as well as the Court's rejection of the misrepresentation claim. In upholding the trial court's granting of summary judgment, the Superior Court pointed out that if the rolling provision of GARA were triggered every time a service bulletin was issued, it would eviscerate GARA's intent. The Court also found that plaintiffs did not present evidence of active obstruction to support a misrepresentation claim under GARA.

On January 25, 2011, the Pennsylvania Supreme Court agreed to hear plaintiffs' appeal from the Superior Court's en banc affirmance, limited to one issue as it had been stated by plaintiffs:

On September 27, 2011, the Pennsylvania Supreme Court affirmed the Superior Court's order in a per curiam order, advising that the Court was equally divided on this one issue presented, which resulted procedurally in the intermediate appellate court's order being affirmed.

On December 20, 2011, plaintiffs filed a petition for Writ of Certiorari in the Supreme Court of the United States. They asked the U.S. Supreme Court, among other things, to determine: (1) if the lower courts had improperly granted blanket immunity to a general aviation manufacturer for negligence and strict liability in its written instructions under the rolling provision of GARA; and (2) if the lower courts had misinterpreted the GARA knowing misrepresentation exception by applying a heightened, fraud-like standard. As of this writing, the Supreme Court has not yet acted on the petition.

III. Federal Preemption of State Law Related to Product Design

One of the most significant issues in aviation products liability in recent years revolves around the question of whether, and the extent to which, federal law preempts state law standards of care applicable to manufacturers. What appeared to be a relatively dead issue just a few years ago is again showing signs of life. Supreme Court cases have recognized implied preemption in situations where application of state tort law would conflict with specific federal aviation statutes and regulations. Recent Supreme Court and intermediate appellate court cases may call into question the vitality of prior federal appellate decisions rejecting preemption as to aircraft products liability claims.

Hart v. Boeing Co., 2009 U.S. Dist. LEXIS 117766 (D. Colo. Nov. 23, 2009).

In Hart v. The Boeing Company,²⁸ the United States District Court for the District of Colorado addressed claims arising from a Boeing 737 takeoff accident. On December 20, 2008, Continental Airlines Flight 1404 was departing from Denver International Airport for Houston, Texas. On departure, the 737 veered off the runway and crashed. Plaintiffs asserted claims for negligence and strict liability relating to the design, manufacture, testing, inspection and sale of the 737's directional control and stabilization systems. Specifically, plaintiffs contended that the airplane's directional control mechanisms were designed such that it makes it difficult for pilots to maintain heading during high crosswind takeoffs. Defendant Boeing argued that plaintiffs' claims were preempted by the Federal Aviation Act,²⁹ and that their failure to allege a violation of a federal duty of care was fatal to their claims. Based on Tenth Circuit precedent, the Court denied Defendant's motion to dismiss. The Court noted that although other jurisdictions had taken ―an arguably more nuanced approach to the issue of implied preemption under the [Federal Aviation Act]‖³⁰ the Tenth Circuit in Cleveland v. Piper Aircraft Corp.³¹ had set precedent that it was bound to follow. Thus, Boeing's motion for summary judgment on federal preemption grounds was denied.³²

Damian v. Bell Helicopter Textron, Inc., 352 S.W.3d 124 (Tex. Ct. App. 2011).

In Damian v. Bell Helicopter Textron, Inc.,³³ the Court of Appeals of Texas addressed Defendant Bell's contention that plaintiffs' design-defect and negligence claims related to a Bell 407 helicopter crash were preempted by federal law. The crash happened on January 27, 2000, during a short flight from Sona, Panama to Panama City when the Bell 407 helicopter hit a vulture. The large bird penetrated the helicopter's windshield, resulting in a fatal crash. Consequently, plaintiffs' claims against Bell alleged product design defects in the helicopter's windshield and seatbelts. Bell's defense relied on its contention that the Federal Aviation Act and related federal regulations, such as the FAA certification process for helicopters, impliedly preempts common-law claims relating to the field of helicopter design and airworthiness.

Regarding Bell's field preemption argument, the Court acknowledged that the FAA regulates many aspects of aviation safety, but concluded that there is insufficient evidence, including relating to the certification process, to show that Congress intended to regulate the entire aviation field. Additionally, the Court held that since there are no federal statutes or regulations governing the minimum standards for bird-strike resistance under Part 27 of the Federal Aviation Regulations, Bell's conflict preemption argument failed.³⁴

Pease v. Lycoming Engines, No. 4:10-00843, 2011 U.S. Dist. LEXIS 145344 (M.D. Pa. Dec. 19, 2011).

Pease v. Lycoming Engines³⁵ involved Plaintiffs' design defect claims arising from a Piper PA-32R-301T crash that allegedly was caused by a faulty oil-drain and transfer tube. According to the pleadings, the tube on the oil drain tank failed due to an overhung load and engine vibrations. Plaintiffs asserted that the oil leak caused engine failure due to oil starvation, which ultimately led to the airplane crash.

Regarding Plaintiffs' state law claims, Lycoming contended that the Federal Aviation Act of 1958 preempts state standards of care regarding aviation safety, and that the issuance of a type certificate proves as a matter of law that the engine design had complied with all applicable FAA regulations. Plaintiffs argued that the Federal Aviation Act does not preempt state standards of care regarding aviation safety, and that a type certificate should not foreclose them from proving that Lycoming violated the applicable FAA regulations.

Lycoming's motion for summary judgment based upon federal preemption grounds was granted with respect to plaintiffs' alleged violation of certain federal regulations, but denied in all other requests.³⁶ To explain its holding, the Court considered prior preemption cases including; Abdullah v. American Airlines, Inc.,³⁷ Elassaad v. Independence Air, Inc.,³⁸ and Williamson v. Mazda Motor of America, Inc.³⁹ According to the Court, the broad language of Abdullah did not permit a restrictive interpretation of the Third Circuit's analysis in Elassaad, which slightly narrowed but did not overturn Abdullah.⁴⁰ Additionally, the Court noted that Williamson—a case where state tort law was not preempted by the Federal Motor Vehicle Safety Standard 208, did not affect the validity of Abdullah. The Court concluded that federal regulations established the safety standards in the field of aviation safety, and that these standards may not be supplemented or varied by the states.⁴¹ Notably, the Court urged the Third Circuit to clarify Abdullah's application to aviation products liability cases.⁴² The Court also commented that the ―issue of whether federal law preempts state standards of care in aviation products liability cases deserves individualized consideration based on the specific regulations promulgated by the FAA relating to certification of airplanes and airplane component parts.‖⁴³

Morris v. Cessna Aircraft Co., No. 4:10-00843, 2011 U.S. Dist. LEXIS 137837 (N.D. Tex. Dec. 1, 2011).

Morris v. Cessna Aircraft Co.⁴⁴ arises from a Cessna C208B crash on January 24, 2003 near San Angelo, Texas which injured its two occupants. On January 4, 2005, plaintiffs filed suit asserting, among other things, claims for strict products liability and negligence. Plaintiffs contended that the aircraft was unreasonably dangerous, defective, and not fit for its intended purposes. In its motion for summary judgment, Cessna argued that the Federal Aviation Act of 1958 preempts the Plaintiffs' products liability claims. The Court rejected Cessna's implied field preemption argument, and focused on the Federal Aviation Act's structure and legislative history, as well as the lack of other evidence of clear congressional intent to preempt the field of air safety generally or aircraft design in particular.⁴⁵ Noting that the ―ultimate touchstone‖ in a preemption case is congressional intent, Wyeth v. Levine⁴⁶, the Court found that the Federal Aviation Act does not preempt the common law standard of care applicable to Plaintiffs' products liability claims.⁴⁷

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Footnotes

1 We acknowledge the assistance of Tom Gricks, Jonathan Stern and Alison Finnegan, partners resident in Schnader's Pittsburgh, Washington, DC and Philadelphia offices, and Peter Colonna-Romano, an associate resident in Schnader's Philadelphia office, for their significant contributions to this article.

2 For a broader and more historical context, see J. DENNY SHUPE & VINCENT LAMONACA, PRODUCTS LIABILITY LITIGATION - PAST, PRESENT AND INTO THE 21ST CENTURY, IN AIRCRAFT ACCIDENT RECONSTRUCTION AND LITIGATION, Lawyers and Judges Publishing Company, Inc. (4th ed. 2011).

3 550 U.S. 544 (2007).

4 556 U.S. 662 (2009).

5 Iqbal, 129 S. Ct. at 1949.

6 2011 U.S. Dist. LEXIS 38382 (M.D.Pa. Apr. 8, 2011).

7 Id. at *16.

8 2010 U.S. Dist. LEXIS 137527 (S.D.N.Y. Dec. 30, 2010).

9 Id. at *6-7.

10 254 P.3d 778, 791 (Wash. 2011).

11 2011 U.S. Dist. LEXIS 67722 (S.D. Ala. 2011).

12 Id. at *15.

13 2011 U.S. Dist. LEXIS 69521 (E.D. Okla. June 28, 2011).

14 Id. at *19.

15 2011 U.S. Dist. LEXIS 74778 (M.D. Fla. July 12, 2011).

16 Id. at *10.

17 2011 U.S. DIST LEXIS 143900 (S.D. Fla. Dec. 14, 2011).

18 Id. at *9.

19 2011 Del. Super. LEXIS 569 (Del. Super. Ct. Dec. 15, 2011).

20 Id. at *31.

21 69 So. 3d 406 (Fla. Ct. App. 2011).

22 Id. at *409.

23 2011 U.S. Dist. LEXIS 46889 (W.D. Wash. Apr. 29, 2011).

24 Id. at *11.

25 74 So. 3d 534 (Fla. Ct. App. 2011).

26 Id. at 121.

27 979 A.2d 336 (Pa. Super. Ct. 2009).

28 2009 U.S. Dist. LEXIS 117766 (D. Colo. Nov. 23, 2009).

29 49 U.S.C. § 40101 et seq.

30 2009 U.S. Dist. LEXIS 117766, at *13.

31 The case involved a state law claim for injuries sustained in a Piper aircraft crash. The plaintiff had removed the pilot's seat form the airplane to install a camera to film the events of the flight. On takeoff, the plane hit a car that was parked on the runway causing the pilot who was flying from the rear seat to hit his head on the camera and to suffer severe injuries. Plaintiff's claim was for the negligent design of an aircraft as it related to inadequate forward visibility from the rear seat, and for the lack of a shoulder harness in the rear seat. The Court concluded that such claims were not impliedly preempted by the Federal Aviation Act. Cleveland v. Piper Aircraft Corp., 985 F.2d 1438 (10th Cir.), cert denied, 510 U.S. 908 (1993).

32 2009 U.S. Dist. LEXIS 117766, at *13.

33 352 S.W.3d 124 (Tex. Ct. App. 2011).

34 Id. at 17.

35 2011 U.S. Dist. LEXIS 145344 (M.D. Pa. Dec. 19, 2011).

36 Specifically, Lycoming's Motion for Summary Judgment based upon federal preemption grounds was granted with respect to the alleged violations of 14 C.F.R. §§ 21.3, 23.1013, 33.4, and 33.49.

37 181 F.3d 363 (3d Cir. 1999).

38 613 F.3d 119 (3d Cir. 2010).

39131 S. Ct. 1131 (2011).

40 In Elassaad v. Independence Air, Inc., 613 F. 3d 119 (3d Cir. 2010), the Court held that the field preempted by the Aviation Act was limited to in-air safety and did not encompass supervision of the disembarkation process.‖

41 2011 U.S. Dist. LEXIS at *34-*35

42 Id. at *71-*80; see also Sikkelee, 731 F. Supp.2d at 438-439.

43 Id. at *80.

44 2011 U.S. Dist. LEXIS 137837 (N.D. Tex. Dec.1, 2011).

45 The Court noted that there should be a presumption against finding preemption because of the historical backdrop of state law remedies for its citizens who sustain injuries caused by defective products.

46 555 U.S. 555 (2009).

47 Id. at *6-7.

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