It’s easy to comment favorably on a decision on the importance of aviation safety, which was just decided by the United States Third Circuit Court of Appeals in Sikkelee v. Precision Airmotive Corp., et al., when your legal life is litigating air crash cases for plaintiffs. No. 14-4193 (3d Cir. Apr. 19, 2016). However, the Third Circuit got it right and its opinion is exhaustive, well-reasoned, and most importantly, accurately represents the reality of the regulatory environment in which aviation product manufacturers operate.
Holding that field pre-emption did not prevent an aircraft component manufacturer from being held liable for defects under State law standards, insures that victims of an imperfect system – that permits manufacturers to essentially certify their own products – will have the opportunity to be compensated for injuries and death caused by defects in those products, regardless whether they have received certification from the Federal Aviation Administration (FAA) as safe and airworthy. The importance of this opinion cannot be overstated because it correctly observes the flaws in the system that, which on its surface appears to be a regulatory scheme that exhaustively insures safety of flight; but in fact it does not, and instead relies on the integrity of manufacturers to test according to the regulations, report and correct defects, and make changes to products that have proved no longer safe. Indeed, Service Bulletins and Airworthiness Directives issued after certification – not to mention uncorrected defects that cause repeat accidents – make the assumption that the FAA is doing its job to insure aviation safety, which is unsupported in reality.
The Court rejected parts of an FAA letter, from its counsel, which addressed some of the issues by claiming, falsely, that the regulatory process was thorough, exhaustive and that state based claims of defect would undermine the regulatory process. Those of us in the field knew that the FAA’s representations to the Court were absolutely false and demonstrated that those who authored that letter knew nothing about how their own agency operates, or better said, doesn’t.
It is the thoroughness of the Sikkelee opinion that will underscore its importance in preserving a standard of care that has existed for as long as aviation product liability has existed. The arguments of the manufacturing Appellees were addressing a solution in search of a problem. No aviation products liability decision has changed the standards to which manufacturers must adhere which is a single standard of doing everything necessary to make an aviation product safe regardless whether the regulatory environment imposes a lesser “minimum standards” obligation.
While unsaid in the opinion, the field preemption that the federal Government occupies in aviation is field preemption for only “minimum standards”. All of the statutory and regulatory schemes applicable to aircraft have articulated “minimum standards” to be established by the FAA and abided by manufacturers. This is precisely why aircraft fail and precisely why aircraft and their component manufacturers must be held liable under State law for defects that result in airplane accidents. This is also precisely why the decision of the Third Circuit will fit neatly into the regulatory scheme without changing any obligation of a manufacturer to obtain certification, but unless it makes certain that its product contains everything necessary to make it safe, it may still be liable even though certification status is unchanged.
The FAA has proposed sweeping changes in 14 C.F.R. Part 23, the regulation that addresses the requirements to certify General Aviation Aircraft. That regulatory change, which was not brought to the attention of the Third Circuit, is now fully addressed by Sikkelee. The changes made to Part 23 are consistent with changes being made in the regulatory schemes throughout the Federal Government. The reason is budgetary more than an attempt to make anything safer; but what’s of interest here is that under the new Part 23, the manufacturers create their own means to make an aircraft or its components safe with the regulatory environment entirely open to a manufacturer’s own determination of how the product should be built, tested, and yes, certified as airworthy.
Thus, Sikkelee is unknowingly a standard that will transcend the more strict, but ineffective regulations, which preceded the new Part 23, and provide a predictable standard of liability for defective aircraft and their components post-Part 23 Amendments. Aviation Safety is no accident. Over the decades that the undersigned has been in the field, real changes have been made because of litigation, not in spite of it. The Boeing 737 rudder, which caused so many needless deaths, is informative. During the certification process, FAA certification engineers questioned the design which had only one actuator and one large rudder panel as potentially a single point failure, and thus in violation of the regulations. They were assured of its safety by Boeing engineering and the FAA went along with the design. During the certification process Boeing, pursuant to regulation concluded through some sophistry that since the rudder actuator would likely fail less than once in a billion applications, ten to the minus ninth, it did not have to make it redundant under the regulations.
Even when service reports were received that rudders and other surfaces with similar actuators were moving in excess of allowable limits, and rudders were moving on their own, Boeing which was tasked under the regulations to investigate and fix such defects, assured the FAA and later the NTSB that there was no problem. Four accidents that killed 600 people did not change either the manufacturer or the FAA’s stance that the aircraft was properly certified and there was no problem. During litigation, I was able to procure a rudder actuator and take it to a facility familiar with its failure modes. They demonstrated that contrary to what the manufacturer and the FAA were saying, the actuator could and regularly did fail and worse yet, caused the rudder to move far beyond its design limits. No one told the FAA and NTSB but us. The FAA to this day has remained stubborn, but the NTSB, realizing that it had been deceived, concluded that the aircraft needed a reliably redundant rudder. A significant design change was implemented and there have been no further crashes since the 1990s from that cause. This example, while unknown to the Third Circuit, points out the correctness of its decision even as it relates to aircraft certified under a far more strict regulatory model, Part 25, but administered in an even more relaxed way than even the old Part 23, allowing manufacturers of transport category aircraft to do virtually everything and anything they want.
So, the Court got it right and by doing so should rest assured that it has created no new problem for manufacturers, but instead has clarified their responsibilities to their customers and others who rely on them to insure safe flight.