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Federal Preemption and Aviation Liability

sikkelee brief in opposition - federal preemption

Sikkelee Brief in Opposition

Katzman, Lampert & Stoll is leading the fight to stop aircraft manufacturers in their attempt to evade all liability for the faulty design and manufacture of aircraft that cause a crash.

Aircraft Manufacturers Want Immunity from Lawsuits for Their Negligent Design and Manufacture That Cause an Aircraft to Crash

Airplane manufacturers have banded together in an effort to avoid liability and legal responsibility for the negligent design and manufacture of their aircraft, whether it is a small general aviation aircraft, such as a Cessna, Piper, Cirrus, Mooney or Beechcraft, or a large Transport Category aircraft, including airliners built by Boeing, Airbus and McDonnell Douglas. Katzman, Lampert & Stoll is at the forefront of the fight to prevent this injustice.

Federal Preemption versus State Law Standards of Care and Remedies

Relying on a legal doctrine known as “federal preemption” aircraft manufacturers claim that state law tort remedies, that have existed for over seventy years, should be extinguished to prevent victims of crashes from recovering fair and just compensation from manufacturers that negligently cause a crash. The aircraft manufacturers assert that traditional state law remedies are extinguished by federal preemption because the manufacturers cannot unilaterally change the design of their aircraft; they must first obtain authorization from the Federal Aviation administration.

The General Aviation Revitalization Act of 1994 (GARA) and the Enabling Language of the Federal Aviation Act Establish Congress’ Intent to Preserve State Law Remedies

The manufacturers’ assertion of federal preemption is contradicted by the General Aviation Revitalization Act of 1994 (GARA), which imposes an eighteen years statute of repose, and by the Federal Aviation Act, which contains a clause that expressly preserves state law remedies. Had Congress wanted to preempt the field of aviation product liability and negligence claims, it had the opportunity to do so when it considered and rejected several overarching federal tort remedies in the early 1990s that were proposed to protect aircraft manufacturers that hold type certificates issued by the FAA. Rejecting those statutory schemes outright, Congress instead enacted the limited statute of repose contained in GARA.

Aircraft Manufacturers Effectively Issue their Own Type Certificate

To mass manufacture a specific model of aircraft, a manufacturer must first obtain a type certificate from the Federal Aviation Administration. However, almost all of the testing needed to obtain a type certificate from the FAA is actually performed by the manufacturers. The FAA only “spot checks” a manufacturer’s work. The actual “certification” is done by the FAA in name only. The certification of an aircraft by the FAA is almost always actually done by engineers employed by the manufacturers themselves. That’s right: the companies that design and manufacture aircraft literally self-certify their aircraft in the name of the FAA. The process of aircraft certification is a classic example of the fox watching the henhouse. And, yet, if courts adopt the legal doctrine of federal preemption as urged by the aircraft manufacturers, those manufacturers will be immune from lawsuits brought by the victims of airplane crashes.

Neither Implied (Field) Preemption or Conflict (Impossibility) Preemption Immunize Airplane Manufacturers

The two leading appellate decisions on the question of federal preemption in aviation product liability claims are from Sikkelee v AVCO Corporation, where Katzman, Lampert & Stoll represent the Plaintiff. In Sikkelee we have twice successfully argued in the federal courts that, first, federal preemption does not give immunity to aircraft manufacturers because Congress did not intend to create implied or field preemption for aviation product designs; and, second, that conflict preemption does not apply because it was not “impossible” for a manufacturer to change its design to make an aircraft engine safer where the FAA would have approved the change. To assert conflict preemption, a manufacturer must arguably establish that the FAA would not approve a change. These decisions are from the Third Circuit Court of Appeals, with certiorari to the United States Supreme Court denied in one case and pending in the other case. The battle is not over.

Expect and Prepare for a Preemption Challenge in all Aircraft Product Liability Cases Involving Negligent Aircraft Design and Manufacture

Plaintiffs’ lawyers representing victims of airplane crashes in product liability cases involving FAA type certificated aircraft should anticipate legal challenges to their clients’ claims based on implied and conflict predicated federal preemption. In the drop-down section of our firm’s website, under the heading Federal Preemption, are all of the motions, briefs and court opinions from the Sikkelee decisions. You are welcome to read and download these materials from our website.
Anticipating and then prevailing over a defense founded in implied field preemption or conflict impossibility preemption involves a complex legal battle that begins in the discovery process and progresses to briefing during motion practice. Requesting the necessary documents and obtaining the necessary deposition testimony requires detailed planning. We are available to answer your questions and help wherever and however we can.

Submitted by:

  • David Ian Katzman
  • Bruce Lampert
  • Brad Stoll

Document Downloads

Below you will find the Sikkelee (Federal Preemption) documents available for download

Click the document to view/download.

Implied Preemption

First Appeal

Conflict Preemption

Second Appeal

Five Reasons to Choose Katzman Lampert & Stoll

Hundreds of Millions Obtained on Behalf of Our Clients
Here are a few examples of recent verdicts and judgments from jury trials we have conducted: twelve million three hundred thirty three thousand five hundred dollars ($12,333,500.00) arising from a trial in Texas in Hanak v DynCorp, involving a crash due to faulty maintenance of a U.S. Army Blackhawk helicopter in Italy; fourteen million fourteen thousand five hundred and 16/100 dollars ($14,014,500.16) from a trial we conducted in Maryland, in Parsons, et al. v. Midwest Air Traffic Control Services Inc., et al. involving a midair collision; and, fifty four million dollars ($54,000,000.00) involving the crash of a Boeing 747-400 aircraft in Bagram, Afghanistan, as noted above. This is a sampling, as we have been taking cases to trial for many, many, years.

Successful Litigators
We have a long history of successful adversarial litigation with Boeing. Our cases against Boeing in particular, and specifically with regard to design problems in its 737 aircraft, include the representation of many clients reaching back to the crash of United Airlines flight 585, in Colorado Springs, Colorado, on March 1, 1991, and the crash of USAir flight 427 while on approach to land at Pittsburgh, Pennsylvania, on September 8, 1994. Both of those crashes involved a single-point design failure that caused a rudder reversal, leading to crashes of both 737 aircraft. In the lawsuits arising from both of those crashes, our firm was appointed by the federal courts to the Plaintiffs’ Steering Committee, to lead the litigation.
We also represented several clients and served on the Steering Committee arising from the crash of TWA flight 800 on July 17, 1996. That case involved a design defect in the center fuel tank of a 747 aircraft, leaving it susceptible to explosion from spontaneous combustion.
More recently we have litigated with Boeing on product liability and negligence claims involving the 747-400 crash of National Airlines flight 102 at Bagram Airport, Afghanistan, on April 29, 2013. That crash involved improper loading and restraint of military cargo.

Over 5 Decades Representing the People in Aviation Law Cases
In these past fifty-one years we have handled cases ranging from design and manufacturing defects to pilot error and improper maintenance, involving most of the aircraft types, makes, and models certificated in general aviation and transport category aircraft by the Federal Aviation Administration. We have handled cases from trial through appeals up to and including the United States Supreme Court. First and foremost, we are trial lawyers.

Expertise in All Facets of Aviation Law
Our firm employs several consultants, including pilots, aerodynamic engineers, mechanical engineers and materials engineers, who we regularly retain and deploy when investigating and litigating the causes of aviation accidents. In addition, we employ economists and certified public accountants for modeling and projecting economic losses.

Trained and Experienced Pilots
Our firm was founded in 1968 and since its inception has practiced virtually exclusively in aviation law involving product liability and negligence claims causing personal injury and wrongful death. The partners in the firm are pilots. David Katzman holds an Airline Transport Pilot certificate (the highest pilot certification issued by the Federal Aviation Administration), and is “type rated” and thus qualified to act as pilot-in-command and too instruct others in several transport category jet aircraft.


Airplane Crash Investigation

In-House Aviation Investigators

Airplane accident attorneys often include partners and attorneys who are well-versed in other, technical and aviation-related disciplines, including pilots and engineers. Our attorneys are no different. We have assembled a team of lawyers, pilots, and engineers who are often able to re-construct aviation accident scenarios in order to establish cause-and-effect, which is extremely helpful when litigating complex cases.

Investigating both commercial and commuter airplane and helicopter accidents, and litigation of injury cases resulting from those crashes, are what sets top aviation firms apart from less-focused firms. This is the primary reason so many attorneys refer aviation cases to Katzman Lampert & Stoll.

More about our in-house aviation investigation…

Tenacious Lawyers

Plane Crash Law & Public Service

Katzman Lampert & Stoll is proud to provide public service, as well as service to our clients and their families. Often for little or no fee, we help adjudicate complex cases and provide advice to lawmakers regarding aircraft safety legislation. We seek to improve airline safety, while achieving the best outcomes for those injured in aviation disasters and accidents.

Both our senior partners, David Katzman and Bruce Lampert, are frequently called on to lend their expertise toward the advancement and advocacy of aircraft and aviation safety products and manufacturing upgrades. To this end, many of their articles and reports have been published in journals and online. They have also been called on to testify before both houses of the US congress regarding important airline safety legislation.

Katzman Lampert & Stoll
100 W. Big Beaver Rd. # 130
Troy, MI 48084

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Toll-Free: (866) 309-6097
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Katzman Lampert & Stoll
9596 Metro Airport Ave.
Broomfield, CO 80021

E-mail: Contact Us
Toll-Free: (866) 309-6097
Phone: (303) 465-3663
Fax: (303) 867-1565