By Nicholas Kaster, J.D.
The Ninth Circuit has allowed aviation products liability claims when the subject matter is not pervasively regulated by the Federal Aviation Act. The court here found that Tamarack failed to establish that pervasive regulation applied to the relevant issues.
A federal district court in Washington has denied motions to dismiss product liability claims brought by decedents’ estates against Tamarack Aerospace Group, Inc., arising from a plane crash due to alleged defects in its Winglets system. The court held that the claims were not preempted by the Federal Aviation Administration’s (FAA) regulations and Special Conditions concerning the Winglets and that the allegations in the complaints contained sufficient non-conclusory factual allegations to place Tamarack on notice of the claims to enable it to mount a defense (Davis v. Tamarack Aerospace Group, Inc., January 14, 2021, Peterson, R.).
Background. Around March 26, 2018, the FAA approved an application to install Tamarack ATLAS Winglets, a load alleviation system also known as the Tamarack Active Winglets system, on a certain Cessna aircraft. On November 30, 2018, the plane crashed, killing three passengers aboard. Tamarack is a Washington company, with its principal place of business in Sandpoint, Idaho. The plane crashed in Indiana. Two of the three passengers were Indiana residents, and the third was from Louisiana.
On March 5, 2020, the estates of the three deceased passengers filed separate wrongful death lawsuits against Tamarack, alleging product liability claims. The estates alleged in their first count that the Winglets installed on the plane were not reasonably safe in violation of Washington’s product liability statute, and that there were 34 different ways in which adequate warnings or instructions may not have been provided for the Winglets or in which the Winglets were inadequately designed. In the second cause of action, the estates sought to recover pre-death damages pursuant to the survival of actions under Washington law. Tamarack moved to dismiss on grounds of preemption, conflict of laws, and adequacy of the allegations.
Preemption. Tamarack argued that the design defect claims were preempted by the FAA’s regulations and Special Conditions concerning the Winglets, which, the company contended, provided the exclusive duty standard governing the Winglets.
Under the Supremacy Clause of the U.S. Constitution, Congress has the power to preempt state law. State law can be preempted by federal law under three circumstances. Congress may expressly provide for preemption by explicitly defining "the extent to which its enactments pre-empt state law." State law also can be preempted where "Congress intends federal law to occupy the field." Finally, courts may find implied conflict preemption when federal statutes conflict with state law. Implied conflict preemption occurs either where "it is impossible for a private party to comply with both state and federal law" or "where the challenged state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress."
The Ninth Circuit repeatedly has held that the Federal Aviation Act does not expressly preempt state regulation of air safety or prohibit states from imposing tort liability for unlawful retaliation or constructive termination; thus, any preemption under that Act "must be implied." The Ninth Circuit also has noted that other tort claims, such as those based on defective product claims, are not preempted.
Tamarack argued that both field preemption and implied conflict preemption by impossibility applied. The court, however, was not persuaded by Tamarack’s preemption arguments, given the relevant Ninth Circuit authority. The Ninth Circuit has allowed aviation products liability claims when the subject matter is not pervasively regulated by the Federal Aviation Act.
Tamarack did not establish that pervasive regulation applied to the relevant issues here, the court stated. Nor did it support its contentions that a state product liability claim with respect to the Winglets impermissibly interfered with the purpose of the FAA certification process or that it could not have designed or warned with respect to the Winglets any differently under federal law.
The court did not find that preemption was established to warrant dismissal of the estates’ complaints, either in whole or in part. Therefore, the court denied the motion to dismiss on this ground.
Conflict of laws. Tamarack next argued that the estates’ reliance on Washington survival damages presented a conflict of laws issue that required dismissal of the second cause of action for survival damages because "Washington has no material nexus with the design or construction or installation of the Winglets in Idaho, or the accident scene in Indiana."
However, for the court to find that Washington law does not apply, the court stated that it would first need to find an actual conflict between Washington law and another state, such as Indiana or Idaho, and then find that either Idaho or Indiana has the most significant relationship to the occurrence and the parties. This would require in-depth context that was unavailable at this early stage of the case, the court said. Therefore, the court found that the conflict of laws issue raised by Tamarack was not yet fully developed for adjudication and did not present a basis for dismissal.
Sufficiency of the allegations. Finally, Tamarack sought dismissal of the first cause of action, alleging product liability, on the ground that it did not sufficiently state a claim for either a design or manufacturing defect. To state a product liability claim, the court noted, a plaintiff must plead non-conclusory allegations that plausibly support: (1) a defective design claim; (2) a failure to warn claim; (3) a defective manufacture claim; or (4) a breach of express or implied warranty claim. Courts have recognized that discovery is appropriate before expecting a product liability plaintiff to commit to a specific theory of liability. However, to survive a motion to dismiss, the complaint must contain sufficient non-conclusory factual allegations to support at least one avenue of relief.
Here, the estates alleged 34 different ways in which adequate warnings or instructions may not have been provided for the Winglets or in which the Winglets were inadequately designed. These allegations, the court said, were "plausibly suggestive of a claim entitling the plaintiff to relief" under a product liability theory of recovery.
The estates went beyond making conclusory allegations, the court found. Therefore, the court held that the complaints were sufficient to place Tamarack on notice of the claims and to enable it to mount a defense. Accordingly, the court denied the motion to dismiss on this remaining ground as well.
This case is Nos. 2:20-CV-60-RMP, 2:20-CV-61-RMP, and 2:20-CV-62-RMP.
Attorneys: Bruce A. Lampert (Katzman Lampert & McClune) for James Johnson and Bradley Herman. Andrea J. Rosholt (Hawley Troxell Ennis & Hawley LLP) for Tamarack Aerospace Group Inc.
Companies: Tamarack Aerospace Group Inc.
MainStory: TopStory DefensesLiabilityNews PreemptionNews DamagesNews JurisdictionNews AircraftWatercraftNews WashingtonNews
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