Products Liability Law Daily Product liability claims in suit involving air crash not preempted by FAA regs or GARA limitations period
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Wednesday, February 17, 2021

Product liability claims in suit involving air crash not preempted by FAA regs or GARA limitations period

By Nicholas J. Kaster, J.D.

The court admitted the testimony of a defense expert, except where he opined on the cause of the accident, which involved an impermissible legal conclusion.

Failure to warn claims in a product liability suit arising from an air crash were not preempted by Federal Aviation Administration (FAA) regulations, according to the federal district court in Alaska. General adherence to the "federal certification process" was not enough to find federal preemption. The court also held that the claims were not preempted by the General Aviation Revitalization Act of 1994 (GARA), which imposes an 18-year statute of repose on civil actions against manufacturers. The plane’s allegedly defective short takeoff and landing (STOL) kit and engine conversion were both substantial enough to trigger a new 18-year period, the court held (Specter v. Texas Turbine Conversions, Inc., February 12, 2021, Burgess, T.).

Background. This action arose out of a fatal plane crash that occurred shortly after takeoff from East Wind Lake, near Iliamna, Alaska. The plane was a De Havilland DHC-3 "Otter." One passenger was killed and another survived. Recon Air Corporation (RAC) had installed a STOL kit in the aircraft, which was manufactured by Stolairus Aviation, Inc. and Texas Turbine Conversions, Inc. (TTC). The surviving passenger and the estate of the decedent (collectively, the estate) brought negligence and strict liability claims against TTC and RAC. The complaint alleged that the two companies caused the aircraft to crash because the kit changed the center of gravity and led to the loss of control of the aircraft. The estate alleged that the aircraft was unreasonably dangerous due to the design and execution of the aircraft modifications and other aircraft component parts and that the aircraft’s failure to perform safely was a substantial factor in causing the crash.

The estate brought a motion for partial summary judgment in which it made three claims. First, it asserted that federal law, as interpreted by the Ninth Circuit, did not preempt its state law-based tort claims. Second, it argued that GARA did not bar its claims. Third, it argued that the testimony of TTC’s expert witness should be inadmissible.

Federal preemption-FAA regs. The two companies argued that the estate’s failure to warn claims were preempted by federal law, since implied preemption is found through the Federal Aviation Act and regulations promulgated by the FAA. TTC asserted that it "satisfied all relevant federal warning requirements" and that the cause of the accident was pilot negligence, not inadequate instructions in the Airplane Flight Manual (AFM) or Airplane Flight Manual Supplement (AFMS).

TTC argued that Ninth Circuit law preempts state law claims based on airlines’ failure to warn air passengers. It further argued that "any changes to the content of FAA approved flight manuals must go through the FAA approval process," and, thus, TTC could not make alterations to the flight manuals without FAA approval, even if it wanted to.

The court found that the estate’s claims were not preempted by FAA regulations and, thus, granted the motion to preclude the two companies from asserting an affirmative defense on that basis.

In order for the court to find implied field preemption of the failure to warn claims, it must find that Congress "left no room" for state tort law to impose duties on airplane manufacturers and that the AFM and AFMS are not governed by "pervasive regulations."

The parties disputed how Ninth Circuit law should be applied in this case. The estate argued that the Ninth Circuit has found that state product liability claims are not preempted by federal law. On the other hand, the companies argued that, through the FAA, "‘any state tort claim based on a theory that the warnings required by the agency are insufficient’" are preempted. They further argued that the FAA must approve the AFM and AFMS, and, therefore, even if Alaska law required the warnings suggested by the estate, "TTC could not independently" add them.

The court found that the Ninth Circuit case most on point was Martin ex rel. Heckman v. Midwest Exp. Holdings, Inc. (555 F.3d 806, 811 (9th Cir. 2009)), which concerned a personal injury claim brought by a passenger against a manufacturer and others, due to an alleged defect in the airstairs on an airplane. In that case, the court rejected the manufacturer’s argument that "defective product claims are preempted by the federal certification process required for every plane design" and, instead, found that "[t]here’s no indication that the agency pervasively regulate[d] every aspect of plane design."

The FAA regulations, the court noted, require that certain changes need be reviewed and approved by the FAA. However, the two companies made no showing that Congress or the FAA have promulgated specific rules relating to AFM or AFMS contents.

Just like the court in Martin, which rejected the argument that general adherence to the "federal certification process" is enough to find federal preemption, the court here reached the same conclusion. It was not enough to argue that the AFM or AFMS were part of the federal certification process and, therefore, the estate’s claims must be preempted, the court held.

Federal preemption-GARA. The companies argued that the estate’s claims were further barred by GARA, which "precludes actions against manufacturers of general aviation aircraft if the part that allegedly caused the accident is more than 18 years old." They argued that the estate’s claims were barred because the modifications made to the subject plane did not trigger the limitations date and that the accident in this case happened "more than eighteen years after the initial transfer of the aircraft."

The court disagreed, finding that GARA did not preempt the estate’s claims. The court therefore granted the motion to preclude the companies from asserting an affirmative defense on the basis of GARA.

GARA was Congress’ attempt to reduce the "enormous product liability costs that our tort system had imposed upon manufacturers of general aviation aircraft." It established an 18-year statute of repose for civil actions against manufacturers. However, the 18-year period "begins anew" if death or injury to plaintiffs was "caused by any ‘new component, system, subassembly, or other part which replaced another component, system, subassembly, or other part originally in, or which was added to, the aircraft.’"

The estate argued that the 18-year period began in 2014, when the STOL kit and TTC engine conversion were installed in the aircraft and that those modifications "caused the injuries and deaths at issue." The companies contended that the changes made to the subject plane were only modifications of the engine system and that "replacement of a few parts of a larger system" did not start the GARA rolling limitations period anew.

The court found that GARA did not bar the estate’s claims, holding that the kit and engine conversion were both substantial enough to trigger a new 18-year period for those parts. The kit and especially the engine conversion, the court held, were not simply replacing a few parts of the plane, but were squarely "new component[s] [or] system[s]" that would trigger the new limitations period, as contemplated by GARA.

Expert witness testimony. Finally, TTC argued that its defense expert was qualified under the Daubert standard and that his testimony was admissible at trial. With one exception, the court found that the expert was qualified and that his proffered testimony met the Daubert standard-that it was both reliable and relevant in this case.

First, the court found that the expert was qualified. He was an aeronautical engineer with over 50 years of experience and specialized in the FAA certification process. Next, the court found that the expert’s methodology was reliable. He reviewed 48 documents including government regulations, NTSB records, flight test data, deposition testimony, and other sources in order to reach his conclusions. In his report, he applied his engineering background and experience to evaluate the "error chain" that contributed to the accident. He evaluated the sufficiency of the flight testing conducted on the Otter floatplane and issues relating to the center of gravity. With regard to the FAA certification process, his core competency, he explained the FAA standards and process for certification.

The estate argued that the expert should have done more-such as flight testing-and that his analysis was not sufficiently rigorous. However, the court found that these objections went to the weight of his opinions, not their admissibility.

Finally, the court found that the expert’s proffered opinions were relevant to the theories at issue in this case. He analyzed the changes made to the plane by TTC and RAC and reached conclusions about whether those changes were a contributing cause to the crash. His report discussed the regulatory framework and whether the parties’ behavior fell within industry norms.

The only exception to this observation, however, was the expert’s fifth opinion as to the cause of the accident, where he stated, "Therefore, the entire responsibility for this accident, and subsequent loss of life, rests completely on Rainbow King Lodge, Inc.[’s] decision making and illegal operation of airplane N928RK on September 15, 2015." While the expert may discuss regulations governing the subject plane and other facts in the record, his ultimate conclusion that Rainbow King Lodge illegally operated the subject plane was an impermissible legal conclusion and must be excluded, the court held.

The case is No. 3:17-cv-00194-TMB.

Attorneys: Alisa R. Brodkowitz (Friedman Rubin PLLP) for Jolyn L. Specter. Marc Gerhard Wilhelm (Richmond & Quinn) for Rainbow King Lodge, Inc. John B. Thorsness (Clapp, Peterson, Tiemessen, Thorsness & Johnson, LLC) for Texas Turbine Conversions, Inc. Gary A. Zipkin (Guess & Rudd PC) and Robert James Fenn (Rohmer & Fenn) for Recon Air Corp.

Companies: Rainbow King Lodge, Inc.; Texas Turbine Conversions, Inc.; Recon Air Corp.

MainStory: TopStory PreemptionNews ExpertEvidenceNews AircraftWatercraftNews DefensesLiabilityNews AlaskaNews

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