Sikkelee v. Precision Airmotive Corporation et al
Filing
495
MEMORANDUM (Order to follow as separate docket entry) re 482 MOTION for Summary Judgment filed by Avco Corporation, Textron Lycoming Reciprocating Engine Division.Signed by Honorable Matthew W. Brann on 9/10/14. (km)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JILL SIKKELEE, individually and
as personal representative of the
estate of DAVID SIKKELEE,
deceased,
:
:
:
:
:
Plaintiff
:
:
v.
:
:
PRECISION AIRMOTIVE
:
CORPORATION, PRECISION
:
AIRMOTIVE LLC, PRECISION
:
AEROSPACE CORPORATION,
:
PRECISION AEROSPACE
:
SERVICES LLC, PRECISION
:
AVIATION PRODUCTS
:
CORPORATION, PRECISION
:
PRODUCTS LLC, ZENITH FUEL :
SYSTEMS LLC, BURNS
:
INTERNATIONAL SERVICES
:
CORPORATION, FORMER FUEL :
SYSTEMS, INC., MARK IV
:
INDUSTRIES, INC., TEXTRON
:
LYCOMING RECIPROCATING
:
ENGINE DIVISION, TEXTRON,
:
INC., AVCO CORPORATION,
:
KELLY AEROSPACE, INC.,
:
KELLY AEROSPACE POWER
:
SYSTEMS, INC.,
:
ELECTROSYSTEMS, INC.,
:
CONSOLIDATED FUEL
:
SYSTEMS, INC.,
:
:
Defendants.
:
Case No. 4:07-cv-00886
(Judge Brann)
1
MEMORANDUM
September 10, 2014
For the following reasons, the motion for summary judgment of AVCO
Corporation, on behalf of its Lycoming Engines Division (hereinafter,
“Lycoming”), is granted in part and denied in part.
I.
Background
Before turning to Lycoming’s pending motion for summary judgment, the
Court should review the relatively long history of this products liability case.
Commenced in May 2007 by way of a 103-page Complaint, the case was originally
assigned to the Honorable John E. Jones III, and was reassigned to the undersigned
almost six years later on January 17, 2013.
Plaintiff is Jill Sikkelee (hereinafter, “Sikkelee”), individually and as
personal representative of the estate of David Sikkelee (hereinafter, “David”);
David was Jill’s husband when he died piloting an airplane in 2005. Sikkelee’s
Complaint asserts that David’s “aircraft lost power as a result of an engine fuel
delivery system [i.e., carburetor] malfunction/defect [that, in turn, caused] the
aircraft and its pilot [i.e., David] to lose control and crash” shortly after takeoff
from Transylvania County Airport in Brevard, North Carolina. (Complaint, May
16, 2007, ECF No. 1 ¶ 11). The Complaint asserts claims against seventeen
2
defendants associated with the alleged “malfunction/defect” that supposedly
caused David’s crash and death. Sikkelee predicated her claims on state law
theories of strict liability, breach of warranty, negligence, misrepresentation, and
concert of action.
Sikkelee’s claims against five defendants were dismissed by stipulation on
Dec. 22, 2008 (ECF No. 102); two more defendants were dismissed by stipulation
on April 14, 2010 (ECF No. 140); and settlement with four more defendants was
approved on July 13, 2010. (ECF No. 146).
On August 13, 2010, more than three years after the Complaint was filed,
Judge Jones dismissed Sikkelee’s claims against the remaining defendants. A
decade before, in Abdullah v. Am. Airlines, 181 F.3d 363 (3d Cir. 1999), the
United States Court of Appeals for the Third Circuit held “that federal law
establishes the applicable standards of care in the field of air safety, generally, thus
preempting the entire field from state and territorial regulation,” though
“traditional state and territorial law remedies continue to exist for violation of
those [federal] standards.”1 Id. at 367, 375. Ten years later, Judge Jones concluded
Which is to say, the Circuit Court “did not conclude in Abdullah that the
[plaintiffs’s] common law negligence claims themselves were preempted; instead,
[the Circuit Court] determined only that the standard of care used in adjudicating
those claims was preempted. Local law still governed the other negligence
elements (breach, causation, and damages), as well as the choice and availability of
1
3
that Abdullah compelled dismissal of Sikkelee’s Complaint: “[B]ased upon the
state of the controlling law, this action is indeed controlled by Abdullah.” Sikkelee
v. Precision Airmotive Corp., 731 F. Supp. 2d 429, 438-39 (M.D. Pa. 2010)
(hereinafter, “Sikkelee I”). Therefore, continued Judge Jones, “any claims that
Plaintiff asserts under a state-law standard of care” – i.e., all of Sikkelee’s claims in
the Complaint – “must necessarily be dismissed.” Sikkelee I, 731 F. Supp. 2d at
438-439.
Although she had opposed the extension of Abdullah to her claims partly on
the ground that “there is no specific federal regulation pertaining to the actual
design, construction, inspecting, and testing [of the] carburetor/engine fuel system
at issue [in this case. . . ., i.e.,] [t]here is a gap, unlike the facts in Abdullah” (Pl.
Br., May 6, 2009, ECF No. 117 at 20), Judge Jones nevertheless granted Sikkelee
“leave to amend the Complaint and assert claims under federal standards of care.”
Sikkelee I, 731 F. Supp. 2d at 439. On August 31, 2010, Sikkelee filed a 155-page
Amended Complaint. (ECF No. 160).
As the case neared its fourth anniversary, Judge Jones granted Lycoming’s
motion to dismiss Sikkelee’s claims for breach of warranty, misrepresentation, and
concert of action. 2011 WL 1344635, at *4 (M.D. Pa. Apr. 8, 2011). Sikkelee
remedies.” Elassaad v. Independence Air, Inc., 613 F.3d 119, 125 (3d Cir. 2010).
4
followed with a Second Amended Complaint (137 pages, for those keeping track)
on April 18, 2011 (ECF No. 205), and by the time Judge Jones decided on March
13, 2012, that “Pennsylvania law will apply to the liability issues remaining in
th[is] case,”2 the termination of additional parties left Lycoming as the only
defendant in the case. (ECF No. 288 at 1-2).
Just past the wooden anniversary, with the matter pared down to Sikkelee’s
claims asserting Lycoming’s negligence and strict liability, Judge Jones decided
two Lycoming motions for summary judgment on July 3, 2012 in an opinion
reported at 876 F. Supp. 2d 479 (2012) (hereinafter, “Sikkelee II”). Upon
consideration of the parties’s briefs, which “focus[ed] primarily on the issue of
whether or not Lycoming is a manufacturer” subject to potential liability under
Pennsylvania products liability law, Judge Jones denied Lycoming’s motions in
part, holding that “genuine issues of material fact remain with regard to whether
Lycoming is a manufacture [sic] relative to the defective carburetor and overhaul
of the engine in 2004, whether a defect existed, and whether said defect
proximately caused the Plaintiff's injuries.” Sikkelee II, 876 F. Supp. 2d at 493,
495. He also, however, “grant[ed] summary judgment to the limited extent that
Given Judge Jones’s previous determination that Abdullah applies and that,
accordingly, federal law supplies the standard of care in this case, Pennsylvania
law is preempted insofar as it imposes a standard of care on Lycoming.
2
5
Plaintiff’s claims may be construed to allege a defect in the engine in 1969,”
reasoning that “Plaintiff has offered no evidence . . . demonstrating that the engine
was defective when it left the Lycoming’s Williamsport manufacturing plant in
1969 or that a defect existing at that time caused the 2005 aircraft accident.” Id. at
486. Judge Jones ordered that “[t]he case shall proceed on the negligence and strict
liability design defect theories asserted by the Plaintiff as they relate to the 2004
engine overhaul.” Id. at 495.
On July 26, 2012, at Lycoming’s urging, Judge Jones amended the Order
that accompanied Sikkelee II to include a statement under 28 U.S.C. § 1292(b)
encouraging the Third Circuit to hear an interlocutory appeal on the issue of
“whether the Pennsylvania Supreme Court would adopt the RESTATEMENT
(THIRD) OF TORTS or continue in its application of the RESTATEMENT
(SECOND) OF TORTS.” (ECF No. 306). Judge Jones had predicted in Sikkelee II
that the Pennsylvania Supreme Court would be guided by the Restatement
(Second) of Torts, and denied Lycoming’s motions for summary judgment based
on his application of the Restatement (Second). Deeming the Restatement (Second)
versus Restatement (Third) issue “a controlling question of law” (ECF No. 306),
Judge Jones suspended briefing on Lycoming’s then-pending motion for
reconsideration in order to give the parties the benefit of the Third Circuit’s
6
expected disposition of Lycoming’s interlocutory appeal (July 26, 2012, ECF No.
307).
On September 14, 2012, a panel of the Third Circuit denied Lycoming’s
Petition for Permission to Appeal Judge Jones’s July 3, 2012 Order. 2012 WL
4953074 (3d Cir. Sept. 14, 2012). Lycoming petitioned for rehearing en banc and
panel rehearing. The Third Circuit likewise rejected these petitions on October 17,
2012, but its Order decidedly instructed that “federal courts sitting in diversity and
applying Pennsylvania law to products liability cases should look to sections 1 and
2 of the Restatement (Third) of Torts.” 2012 WL 5077571 (3d Cir. Oct. 17, 2012)
(emphasis added). The same day, Judge Jones denied as moot Lycoming’s pending
motion for reconsideration of Sikkelee II and provided that “[t]he parties MAY, at
their election, file new motions for reconsideration, guided by the Circuit’s
direction that the RESTATEMENT (THIRD) is applicable to this action.” (ECF
No. 324). On October 31, 2012, Lycoming filed a motion for reconsideration of
Sikkelee II to the extent it denied Lycoming’s motion for summary judgment.
(ECF No. 332). That motion for reconsideration was pending at the time this case
was reassigned to the undersigned in January 2013.
On June 3, 2013, applying against Lycoming the demanding standard that
7
confronts a motion for reconsideration,3 this Court held that neither an intervening
change in law nor supposed clear error warranted reversal of Sikkelee II, 2013 WL
2393005 (M.D. Pa. June 3, 2013), a determination the Court reinforced and
elaborated upon in an Order dated July 9, 2013, 2013 WL 3456953 (M.D. Pa. July
9, 2013)), at oral argument on November 13, 2013 (Tr., Nov. 25, 2013, ECF No.
459 at 199-204), and in a Memorandum dated November 20, 2013 (ECF No. 456
at 4 n.2). Trial was then scheduled for December 2, 2013.
Some months before trial, however, it became clear that Sikkelee had
hurdled the fence of the Restatement (Third) only to be confronted by the
menacing hound that is Abdullah lurking on the other side. On October 24, 2013,
Sikkelee proposed jury instructions incorporating some eighteen federal
regulations and pronouncements of the Federal Aviation Administration
(hereinafter, the “FAA”) and Civil Aeronautics Board, the FAA’s predecessor.
See page *2 of the Court’s Memorandum:
3
The Court may amend its prior ruling “if the party seeking
reconsideration shows at least one of the following grounds: (1) an
intervening change in the controlling law; (2) the availability of new
evidence that was not available when the court granted the motion for
summary judgment; or (3) the need to correct a clear error of law or fact
or to prevent manifest injustice.” Howard Hess Dental Lab. Inc. v.
Dentsply Int’l, Inc., 602 F.3d 237, 251 (3d Cir.2010) (quoting Max’s
Seafood Cafe v. Quinteros, 176 F.3d 669, 677 (3d Cir.1999)).
8
(ECF No. 409-7).The Court reviewed the proposed charge with a raised eyebrow,
puzzled by Sikkelee’s derivation of a standard of care from certain regulations, and
unable to grasp the causal relevance of the alleged breach of others.
At a November 13, 2013 hearing, the Court expressed doubt concerning the
validity of Sikkelee’s proposed instructions and heard her counsel’s attempts to
justify them. By way of a November 20, 2013 Memorandum, the Court – after
explaining the difficulty that courts have had fashioning jury instructions
consistent with Abdullah generally4 – recounted the hearing as follows:
[P]laintiff’s counsel was all but completely unable to assist the Court in,
to use Chief Judge Conner’s phrase, “formulating an intelligible
statement of applicable law.” The Court’s confidence in the capacity of
plaintiff’s proposed instructions to guide the Court steadily diminished
throughout the argument, and was lost completely when plaintiff’s
counsel made the incredible suggestion that the Court could fulfill its
duty to instruct the jury by delivering Pennsylvania pattern instructions
on negligence. See Abdullah, 181 F.3d at 376 (remanding case to district
At pages 2-3, the Court wrote,
4
As Chief Judge Conner has explained, “FAA regulations relating to the
design and manufacture of airplanes and airplane component parts were
never intended to create federal standards of care.” [Pease v. Lycoming
Engines, 2011 WL 6339833, at *22 (M.D. Pa. Dec. 19, 2011)]. This
makes construing the regulations as standards of care, which Abdullah
requires, “arduous and impractical.” Pease, 2011 WL 6339833, at *23.
Chief Judge Conner found under similar circumstances that “[t]he court’s
obligation to instruct the jury with these obscure regulations will be
severely challenged, and there is no jurisprudential guidance to assist the
court in formulating an intelligible statement of applicable law.” Id.
9
court to “evaluate whether the evidence on standards of care and the
instructions given to the jury conformed to the federal aviation safety
standards as we have described them”).
(ECF No. 456 at 5-6).
With trial approaching, the Court found itself “without sufficient guidance
from either precedent or the parties as to the law that will govern not only the
jury’s deliberations, but also the Court’s rulings on the relevance of evidence,
motions pursuant to Fed. R. Civ. P. 50, and other questions.” (Id. at 6). The Court
postponed trial to March 10, 2014 and ordered Sikkelee to submit a brief showing
why the regulations she cited constitute the standard of care applicable to
Lycoming; Lycoming was given the opportunity to respond. (Nov. 20, 2013, ECF
No. 457).
Upon review of the parties’s papers, the Court determined that the issues
raised would profit from examination in the posture of summary judgment. Not
incidentally, an order resolving a motion for summary judgment would, in the
Court’s view, be conducive of interlocutory consideration by the Third Circuit
under 28 U.S.C. § 1292(b), consideration which this Court resolved to encourage
in light of the vexation these issues have caused this Court and others. Compare
Lewis v. Lycoming, 957 F. Supp. 2d 552 (E.D. Pa. 2013), with Pease v. Lycoming
10
Engines, 2011 WL 6339833, at *22 (M.D. Pa. Dec. 19, 2011).5 On February10,
2014, the Court ordered summary judgment briefing limited to Lycoming’s
contention that, in view of the parties’s evidence, no reasonable jury could
conclude that Lycoming’s allegedly tortious conduct breached a federal standard of
care and caused David’s crash thereby. Trial was postponed. (ECF No. 478). In
accordance with the Court’s Order, Lycoming moved for summary judgment on
March 19, 2014. (ECF No. 482).
II.
Summary Judgment Standard
Summary judgment is appropriate where “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). A fact is “material” where it “might affect the
outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). A dispute is “genuine” where “the evidence is such that
a reasonable jury,” giving credence to the evidence favoring the nonmovant and
making all reasonable inferences in the nonmovant’s favor, “could return a verdict
for the nonmoving party.” Id.
The Third Circuit has permitted appeals of analogous issues in the past. See
In re TMI, 67 F.3d 1105, 1106 (3d Cir. 1995) (certified question involving whether
specified federal regulations constituted standard of care in case involving claims
arising from the Three Mile Island nuclear meltdown).
5
11
For movants and nonmovants alike, the assertion “that a fact cannot be or is
genuinely disputed must” be supported by “citing to particular parts of materials in
the record,” or by “showing that the materials cited [by an adverse party] do not
establish the absence or presence of a genuine dispute, or that an adverse party
cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1).
“If a party fails to properly support an assertion of fact or fails to properly address
another party’s assertion of fact as required by Rule 56(c), the court may . . .
consider the fact undisputed for purposes of the motion.” Fed. R. Civ. P. 56(e)(2).
Thus, where the moving party’s motion is properly supported and his
evidence, if not controverted, would entitle him to judgment as a matter of law, the
nonmoving party, to avoid summary judgment in his opponent’s favor, must
answer by setting forth “genuine factual issues that properly can be resolved only
by a finder of fact because they may reasonably be resolved in favor of either
party.” Anderson, 477 U.S. at 250. In the face of the moving party’s evidence, the
nonmoving party’s mere allegations, general denials or vague statements will not
create a genuine factual dispute. See Bixler v. Cent. Pennsylvania Teamsters
Health & Welfare Fund, 12 F.3d 1292, 1302 (3d Cir. 1993). Only citation to
specific facts is sufficient. Anderson, 477 U.S. at 250.
Where the nonmoving party has had adequate time for discovery and will
12
bear the burden of proof at trial, “a complete failure of proof concerning an
essential element of the nonmoving party’s case necessarily renders all other facts
immaterial,” and summary judgment is warranted. Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986).
III.
Facts6
Sikkelee claims that Lycoming is liable for alleged defects in the “engine, . .
. carburetor, . . . [and] fuel delivery system” (as well as various “manuals and
instructions” related to these components) installed in the aircraft (a Cessna 172N)
that David was piloting when he crashed fatally in 2005 (hereinafter, the “accident
aircraft”). (2d Am. Compl., Apr. 18, 2011, ECF No. 205 ¶¶ 141, 144, 162). The
nature of Lycoming’s association with the components at issue is important to the
Court’s analysis and will be set forth in some detail.
In 1969, Lycoming manufactured the engine – a model O-320-DC2 bearing
the serial number L-6590-39A (hereinafter, the “subject engine”) – that was
installed in the accident aircraft at the time of David’s crash. (Def. Facts, Mar. 19,
2014, ECF No. 483 ¶¶ 6, 8 (hereinafter, “Def. Facts I”)). Most of the subject
Where the parties’s accounts differ, the Court views the facts and draws
reasonable inferences therefrom in Sikkelee’s favor. See Montone v. City of Jersey
City, 709 F.3d 181, 189 (3d Cir. 2013) (facts and reasonable inferences drawn
therefrom must be favorable to party opposing motion for summary judgment).
6
13
engine’s 35-plus years were spent in storage: Lycoming shipped the engine to
Beagle Aircraft, Inc., in September of 1969, and it was not until 1998 that the
engine was installed “factory new” on the accident aircraft. (Def. Facts I ¶ 7; Pl.
Facts, Apr. 28, 2014, ECF No. 488 ¶ 7 (hereinafter “Pl. Facts”)).
When the subject engine left Lycoming’s control in 1969, it shipped with a
carburetor7 – setting 10-3678-32, serial number A-25-15850 (hereinafter, the
“original carburetor”) – but the carburetor installed in the subject engine when the
accident aircraft crashed in 2005 was not the original carburetor. (Def. Facts I ¶¶ 7,
9, 11; Pl. Facts ¶ 9). When the engine came out of storage in 1998, an overhauled
Marvel-Schebler/Precision Airmotive Corp. (hereinafter, “Precision”) model MA4SPA carburetor bearing serial number CK 6 11739 was installed in accordance
with the O-320-DC2's type-certificated design (more on FAA “type certification”
shortly), which calls for installation of the MA-4SPA. (Pl. Ex., ECF No. 234-1; Pl.
Ex., ECF No. 234-6 at 8).
Then, just under a year before David’s accident, Kelly Aerospace, Inc.
(hereinfater, “Kelly”), an FAA certified repair station, overhauled another MA4SPA carburetor – this one bearing serial number CK 6 10964 and originally
A “carburetor” is defined at Merriam-Webster.com as “the part of an engine
in which gasoline is mixed with air so it will burn and provide the engine with
power.”
7
14
manufactured by Precision in 1978 (hereinafter, the “replacement carburetor”) –
and installed it on the subject engine, again in accordance with Lycoming’s typecertificated design. (Pl. Facts ¶ 10; Pl. Ex., ECF No. 234-6 at 8; Pl. Ex., ECF No.
54 ¶ 101; Pl. Ex., ECF No. 207 ¶ 22). In performing the overhaul, Kelly was
required to “use the methods, techniques and practices prescribed in [Lycoming’s]
maintenance manual or Instructions for Continued Airworthiness,” 14 C.F.R. §
43.13(a) (2004), and did so (Pl. Ex., ECF No. 234-6 at 9-10). As part of the
overhaul, Kelly removed parts from the replacement carburetor and replaced them
with parts8 that Kelly had manufactured under its FAA-issued Parts Manufacturer
Approval (hereinafter, “PMA”) (more on PMA shortly). (Def. Facts I ¶ 10). The
Kelly-overhauled replacement carburetor was powering the subject engine when
David was piloting the accident aircraft in 2005.
Those are the basics. To better understand Lycoming’s association with –
and duties with regard to – the allegedly defective components, however, it is
necessary to specify where Lycoming is situated in the context of the Civil Air
Regulations (hereinafter, the “CARs”) and the Federal Aviation Regulations
These parts include the “pump plunger assembly,” the “valve and seat
assembly,” the “single piece venturi,” the “throttle shaft,” and the “carburetor
float,” the last of which was actually manufactured by a vendor to Kelly. (Def.
Facts I ¶¶ 12-13).
8
15
(hereinafter, the “FARs”). General background for the CARs and the FARs is
provided in the margin.9
The Kreindler Treatise provides a helpful guide through the statutory and
regulatory evolution generally relevant to the case at bar:
9
As early as 1938, . . . Congress . . . enacted the Civil Aeronautics Act of
1938 (CAA), the predecessor to the Federal Aviation Act.
Originally, under the CAA, the Civil Aeronautics Board (CAB), an
agency within the Department of Commerce, was the agency responsible
for the regulatory aspects of aviation safety, including promulgating
safety rules [and] inspecting and certifying aircraft, . . . .
In 1958, the Federal Aviation Act (the Act) was passed and continues to
be the basic law of the land concerning aviation. With the enactment of
the Federal Aviation Act of 1958, the regulatory functions of the CAB
were transferred to a newly created Federal Aviation Agency.
Subsequently, Congress enacted the Department of Transportation Act
of 1966, which transferred the duties of the Federal Aviation Agency, in
their entirety, to the newly created Department of Transportation (DOT)
and its Secretary of Transportation. The Department of Transportation
Act did not change the substance of the Federal Administration Act, but
rather only reorganized the administrative hierarchy.
The Federal Aviation Agency, renamed as the Federal Aviation
Administration (FAA), remains as an agency within the DOT and acts
for the Secretary of Transportation in the safety rule-making, air-traffic
controlling, and certification processes. The CAB was stripped of its
safety and investigatory functions . . . .
....
The Federal Aviation Regulations (FARs) are promulgated pursuant to
the Federal Aviation Act and have the full force and effect of law. The
FARs are a voluminous body of ever-changing rules and regulations
16
IV.
Regulatory Structure
Lycoming is the holder of a “type certificate” for the Lycoming O-320-D2C
model engine. (Def. Facts I ¶ 2). To obtain this status, which it did in 1966,
Lycoming demonstrated the O-320-D2C’s compliance with certain “airworthiness”
standards, see CAR § 13.10 (1964),10 and type certification denotes that, in the
view of the Federal Aviation Administrator (the head of the FAA, hereinafter, the
“Administrator”), the engine “is of proper design, material specification,
construction, and performance for safe operation, and meets the minimum
standards, rules, and regulations” prescribed by the FAA. 49 U.S.C. § 1423(a)
governing the qualifications, certification, and operation of aircraft,
pilots, instructors, air carriers, and air traffic controllers. . . . In large part,
they constitute a broad recodification of the former Civil Air
Regulations, which were originally issued by the Secretary of
Commerce, then by the Civil Aeronautics Board (CAB), then by the
Federal Aviation Agency, and finally by the Federal Aviation
Administration (FAA). They are codified in Title 14 of the Code of
Federal Regulations.
2 Kreindler, Aviation Accident Law § 9.01(1)-(2) (Matthew Bender).
When discussing type certification of the O-320-D2C, the Court refers to
the CARs and relevant provisions of the Federal Aviation Act as they stood in
1964 because, in the Court’s understanding, the 1964 regulations and statute
governed Lycoming’s 1966 application for type certification. Otherwise, the Court
refers to the FARs and Federal Aviation Act as they stood in 2004, doing so on the
understanding that the 2004 regulations and statute governed at the time of David’s
accident.
10
17
(1964). The MA-4SPA carburetor, which is actually manufactured by Precision
(or, in the past, Precision’s predecessors), is a component of the O-320-D2C’s
type-certificated design.11 (Pl. Ex., ECF No. 234-9).
By virtue of its status as a type certificate holder, Lycoming has the privilege
of “obtain[ing] a production certificate” for the O-320-D2C. 14 C.F.R. § 21.45
(2004). A production certificate holder is permitted to produce duplicates of the
certificated product, 49 U.S.C. § 44704(c) (2004), and Lycoming obtained such a
certificate (although when it did so is not clear from the record) for the O-320-D2C
(Pl. Ex., ECF No. 234-5 at 12) by demonstrating that it maintains a quality control
system adequate to ensure that “each [O-320-D2C produced] will meet the design
provisions of the [O-320-D2C] type certificate,” 14 C.F.R. § 21.139 (2004), and
that it has developed “procedures necessary to ensure that each article produced
conforms to the type design and is in a condition for safe operation,” 14 C.F.R. §
21.143(a) (2004). The FARs take account of the fact that a type certificated
product (e,g., an engine) is often an assemblage of smaller components (e.g., a
carburetor) purchased from outside suppliers (e.g., Precision), making clear that a
production certificate holder must establish procedures for ensuring the quality and
Since at least the 1970s, it appears, Lycoming has licensed its design of the
MA-4SPA to Precision or Precision’s predecessors in interest. (Pl. Opp’n Br., Apr.
28, 2014, ECF No. 487 at 12; Pl. Ex., ECF No. 152-4 at 9; Pl. Ex., ECF No. 23413).
11
18
conformity of all components integrated in the certificated product. 14 C.F.R. §
21.143(a)(2) (2004). Once a production certificate is obtained, the holder is
responsible for maintaining its quality control system and for “[d]etermin[ing] that
each part and each completed product . . . submitted for airworthiness certification
or approval conforms to the approved design and is in a condition for safe
operation.” 14 C.F.R. § 21.165 (2004). The subject engine is one of many O-320D2Cs produced under Lycoming’s production certificate.
Like all machines, aircraft engines must be maintained to ensure proper
functioning, and the FAA would prefer that you not rely on your handy uncle to
do the job. Accordingly, only persons designated qualified by the FARs are
permitted to “maintain, rebuild, alter, or perform preventative maintenance on an . .
. aircraft engine,” a designation which includes agents of “[t]he holder of a repair
station certificate.” 14 C.F.R. §43.3(a) & (e) (2004). Kelly held such a certificate
when it overhauled the replacement carburetor. Under federal regulations, type
certificate holders are required to “prepare and make available an approved manual
containing instructions for the installation, operation, servicing, maintenance,
repair, and overhaul of the engine,” CAR § 13.21 (1964), and as noted above,
Kelly was required to follow Lycoming-prepared manuals and instructions in
performing the overhaul. 14 C.F.R. § 43.13(a) (2004).
19
Finally, sometimes parts of aircraft engines should be replaced to ensure
proper functioning. Rather than give the holder of a production certificate or his
supplier a monopoly on replacements, however, the FARs permit others to
“produce a modification or replacement part for sale for installation on a type
certificated product . . . pursuant to a Parts Manufacturer Approval issued” by the
Administrator. 14 C.F.R. § 21.303(a) (2004). An applicant obtains a PMA once the
“Administrator finds, upon examination of the design and after completing all tests
and inspections, that the design meets the airworthiness requirements of the
Federal Aviation Regulations applicable to the product on which the part is to be
installed” – unless “the design of the part is identical to the design of the part that
is covered under a type certificate,” in which case no such showing is necessary –
and the applicant “submits a statement certifying that he has established” a system
for “ensur[ing] that each completed part conforms to its design data and is safe for
installation on applicable type certificated products.” 14 C.F.R. § 21.303(d) & (g)
(2004). Once a manufacturer has obtained a PMA, he is responsible for
“determin[ing] that each completed part conforms to the design data and is safe for
installation on type certificated products.” 14 C.F.R. § 21.303(k) (2004). A number
of the parts that Kelly installed on the replacement carburetor were manufactured
under a “Parts Manufacturer Approval.” (Pl. Facts ¶ 10).
20
In sum, the regulatory framework attempts to ensure – by way of issuing
various certificates/authorizations and imposing responsibilities on their holders –
that the design of an aircraft engine is safe (type certification), that duplicate
engines manufactured for the public conform to the approved design (production
certification), that engine maintenance and repairs are performed in accordance
with manuals and instructions prepared by the manufacturer, 14 C.F.R. § 43.13
(2004), and that any replacement parts for the engine are either identical to the
original parts described in the type certificate or otherwise airworthy (PMA). But
in recognition of the fact that the Administrator’s authorization of an engine’s
design and manufacture is an imperfect predictor of the engine’s future
performance in the field, holders of type certificates and PMAs are required to
“report any failure, malfunction, or defect in any product, part, process, or article”
that they have manufactured when they determine that the item “has resulted in any
of [various] occurrences,” including “engine failure.” 14 C.F.R. § 21.3(a) (2004). If
the item left the holder’s quality control system, the holder must report any defect
“that it determines could result in any of [various] occurrences,” again including
“engine failure.”14 C.F.R. § 21.3(b) (2004). Such reports are “made to the Aircraft
Certification Office in the region in which the person required to make the report is
located.” 14 C.F.R. § 21.3(e) (2004).
21
When the Administrator determines that an “unsafe condition exists” in an
engine and that the “condition is likely to exist or develop in other [engines] of the
same type design” and, further, that “design changes are necessary to correct the
unsafe condition,” the type certificate holder must change the design and, upon the
Administrator’s approval of the design, “make available the descriptive data
covering the changes to all operators of [engines] previously certificated under the
type certficate.” 14 C.F.R. §§ 21.99 & 39.5 (2004). Absent an unsafe condition, if
the Administrator or the type certificate holder finds “through service experience
that changes in type design will contribute to the safety of the [engine], the holder
of the type certificate may submit appropriate design changes for approval.” 14
C.F.R. § 21.99(b) (2004). Upon approval, “the manufacturer shall make
information on the design changes available to all operators of the same type of
product.” Id.
Sikkelee asserts that David’s crash was caused by Lycoming’s violation of
various federal regulations that govern type certification and breaches of the duties
of type certificate and production certificate holders. In particular, Sikkelee argues
that Lycoming’s design of the O-320-D2C engine (and its MA-4SPA carburetor)
violated a number of design-related requirements that an engine must satisfy for
type certification and that Lycoming failed to provide an adequate instruction
22
manual (CARs §§ 13.21, 13.100(a), 13.101, 13.104 & 13.110(a) (1964)); that
Lycoming breached the duty of a production certificate holder to ensure that “each
part and each completed product . . . submitted for . . . approval [by the certificate
holder] conforms to the approved design and is in a condition for safe operation”
(14 C.F.R. § 21.165 (2004)); and that Lycoming breached the duty of a type
certificate holder to report engine defects to the Administrator and to suggest
design changes in order to make the O-320-D2C safer (14 C.F.R. §§ 21.3 & 21.99
(2004)).
V.
Discussion
Lycoming calls for summary judgment in its favor on various grounds: (1)
Sikkelee fails to set forth federal regulations establishing a standard of care
applicable to Lycoming’s allegedly tortious conduct; (2) assuming arguendo that
the regulations cited by Sikkelee establish an applicable standard of care, Sikkelee
adduces no evidence from which a reasonable jury could infer that Lycoming
violated the regulations; and (3) assuming arguendo that Lycoming violated
regulations that establish an applicable standard of care, Sikkelee proffers no
evidence from which a reasonable jury could infer that the violation caused
David’s crash. (Def. Supp. Br., Mar. 19, 2014, ECF No. 484 at 8 (hereinafter,
“Def. Supp. Br.”)). In particular, Lycoming argues that (4) FAA type certification
23
of the O-320-D2C (including its carburetor, the MA-4SPA) “conclusively
establishes” that the engine met any design-related standard of care established by
federal regulations. (Def. Supp. Br. at 9).
Sikkelee retorts with her own battery of arguments: (1) Judge Jones “held
that [Sikkelee] presented genuine issues of material fact as to whether Lycoming
breached federal standards of care,” and the law of the case doctrine dictates that
the Court should adhere to this ruling (Pl. Opp’n Br., Apr. 28, 2014, ECF No. 487
at 6, 8, 48 (hereinafter, “Pl. Opp’n Br.”)); (2) Lycoming has previously admitted
that certain federal regulations apply in this litigation (Pl. Opp’n Br. at 7); and (3)
by their terms, various federal regulations govern Lycoming’s allegedly tortious
conduct, namely 14 C.F.R. §§ 21.3, 21.99 & 21.165 (2004), and CAR §§ 13.21,
13.100, 13.101, 13.104 & 13.110 (1964). Sikkelee also argues that (4) Judge
Jones’s determination that federal law preempts the field of aviation safety and
supplies the standard of care for this case dictates per force that federal regulations
reach Lycoming’s allegedly tortious conduct because “[t]here can be no pervasive
regulation [of the field of aviation safety, thus preempting the field from state
regulation,] if there are no regulations applicable to [Lycoming’s] aircraft engine
design.” (Pl. Opp’n Br. at 43). Further, (5) Sikkelee extrapolates from the
“premise” of Abdullah that, where no specific federal regulation governs
24
Lycoming’s conduct, the Court must recognize a federally supplied “overall
concept” of appropriate behavior requiring reasonably careful conduct from
aircraft designers, and corresponding liability for carelessness or recklessness that
causes injury. (Id. at 45-46). Finally, (6) Sikkelee argues that the FAA’s issuance
of a type certificate for the O-320-D2C does not preclude a jury from finding that
Lycoming’s design fell short of the standards set by federal regulation.
As a mode of proceeding, the Court will first address briefly Sikkelee’s
arguments (1) and (2), holding that neither the law of the case doctrine nor the
doctrine of judicial estoppel defeat Lycoming’s motion for summary judgment.
The Court will then skip to Sikkelee’s arguments (4) - (6), rejecting each and
explaining why Lycoming is therefore entitled to summary judgment in relation to
Sikkelee’s claims alleging violations of design-related regulations. After granting
Lycoming summary judgment in relation to two additional regulatory bases for
Sikkelee’s claims, the Court will then discuss briefly the single basis on which
Sikkelee may proceed to trial.
(a)
The “law of the case” doctrine should not bar the Court from
considering Lycoming’s Motion for Summary Judgment.
Denying (in part) Lycoming’s previous motion for summary judgment,
Judge Jones held that Sikkelee “has created a genuine issue of material fact for the
25
jury with respect to whether Lycoming breached the applicable federal standards of
care by negligently designing a defective product that proximately caused” David’s
crash. Sikkelee II, 876 F. Supp. 2d at 495. Based on this ruling, Sikkelee now
asserts that “[t]he law of the case mandates that material questions of fact abound
as to Lycoming’s breach of the cited federal regulations.” (Pl. Opp’n Br. at 8).
The Court disagrees. Courts tend not to revisit issues already decided, a
tendency named the “law of the case” doctrine. See Williams v. Runyon, 130 F.3d
568, 573 (3d Cir. 1997). The doctrine “does not limit the power of trial judges to
reconsider their prior decisions,” but the Third Circuit “has identified two
prudential considerations that limit a court’s authority to do so. First, the court
must explain on the record the reasoning behind its decision to reconsider the prior
ruling. Second, the court must take appropriate steps so that the parties are not
prejudiced by reliance on the prior ruling.” Id.
The law of the case doctrine should not bar the Court from considering
Lycoming’s pending Motion for Summary Judgment. For one thing, the law of the
case doctrine does not apply to Judge Jones’s denial of Lycoming’s previous
summary judgment motion:
A denial of a motion for summary judgment cannot determine the law of
a case because it is an interlocutory order subject to reconsideration at
26
any time before final judgment in the case. It does not conclusively
resolve any legal issue or find any fact . . . and has no claim- or
issue-preclusive effect. Therefore, the law of the case doctrine does not
apply to a denial of a summary judgment motion.
11 Moore’s Federal Practice, § 56.121(1)(c) (Matthew Bender 3d ed.).
Moreover, assuming arguendo that the doctrine does apply, there is good
reason to reconsider Judge Jones’s holding. As Judge Jones noted at the time of his
decision in 2012, “the parties’ briefs focus primarily on the issue of whether or not
Lycoming is a manufacturer” for purposes of Pennsylvania law, not on the issue of
whether Lycoming breached federal standards, and Judge Jones reached his
holding on the latter issue “after briefly engag[ing] in a largely independent
analysis.” Sikkelee II, 876 F. Supp. 2d at 493-94. This is not the foundation upon
which highly reliable holdings are built. In addition, Sikkelee has presented no
evidence showing prejudice to her resulting from reliance on Judge Jones’s prior
ruling and the Court perceives none. Thus, “prudential considerations” do not
counsel against reconsideration of Judge Jones’s holding.
(b)
Lycoming’s previous statements should not bar it from asserting that it
is not liable for violating various CARs and FARs.
Without using the phrase (or citing any relevant caselaw), Sikkelee opposes
Lycoming’s summary judgment motion on the ground that the doctrine of judicial
estoppel applies. Because “Lycoming . . . [previously] admitted in this case that
27
federal regulations apply” (Pl. Opp’n Br. at 7), Lycoming should now be barred
from asserting that it cannot be found liable under various FARs and CARs,
Sikkelee argues.
The Court disagrees. “Under the doctrine of judicial estoppel, a court can
defend the integrity of the judicial process by barring a party from taking
contradictory positions during the course of litigation.” G-I Holdings, Inc. v.
Reliance Ins. Co., 586 F.3d 247, 261 (3d Cir. 2009). “Though there is no rigid test
for judicial estoppel, three factors inform a federal court’s decision whether to
apply it: there must be (1) irreconcilably inconsistent positions; (2) adopted in bad
faith; and (3) a showing that estoppel addresses the harm and no lesser sanction [is]
sufficient.” Id. at 262 (internal quotation marks and alterations omitted).
Either ignoring or not recognizing the existence of these factors, Sikkelee
does not argue all of them, focusing all but exclusively on the first. But her
argument fails even here. Most of the statements Sikkelee attributes to Lycoming
were actually mouthed by other defendants (since dismissed from this case) in
support of a motion joined by Lycoming. (See Pl. Opp’n Br. at 28-29). But by
joining other defendants in the motion (see Def. Supp. Br., Apr. 6, 2009, ECF No.
111 at 2), Lycoming did not adopt the statements made in the other parties’s briefs
– indeed it could not. See L.R. 7.8(a) (“No brief may incorporate by reference all
28
or any portion of any other brief”). Thus, the statements that Sikkelee pulls from
other parties’s briefs are not Lycoming’s admissions. Moreover, the statements that
Sikkelee attributes to Lycoming are not irreconcilably inconsistent with
Lycoming’s current position that it is not liable for violating various FARs and
CARs. For these reasons, judicial estoppel doctrine should not bar Lycoming from
summary judgment.
(c)
Federal preemption of the field of aviation safety does not necessarily
imply that there must be a regulation “at hand” for Lycoming to have
violated, and neither principles of field preemption nor
Abdullah require this Court to fill in the gaps of the FARs and CARs
with an “overall concept” of due care for engine designers; accordingly,
Sikkelee’s arguments (4) and (5) are rejected.
Although she does not stress the point at this stage of the game, it is worth
remembering that Sikkelee’s original position in this litigation – a position she no
doubt maintains today – was that Abdullah does not control design defect claims
against aircraft engine manufacturers. Judge Jones conceded that he perceived the
“wisdom” of this position – as does this Court12 – but thought his hands were tied
See also Pease v. Lycoming Engines, 2011 WL 6339833, at *22 (M.D. Pa.
Dec. 19, 2011) (Conner, C.J.) (“The undersigned concludes that Abdullah fails in
its application to aviation products liability cases, and for the followings reasons, it
would be far more facile to employ the applicable state standards of care in
12
29
by “the state of the law as articulated by the Third Circuit,” and held that federal
law must supply the standard of care in this case because state standards are
preempted. Sikkelee I, 731 F. Supp. 2d at 438. Since Judge Jones’s decision was
issued in 2010, Judge Harvey Bartle III has reasoned that the pronouncements of
the Third Circuit that Judge Jones viewed as “controlling” in Sikkelee I, id., were
actually “dicta, not the holding of Abdullah,” Lewis v. Lycoming, 957 F. Supp. 2d
552, 558 (E.D. Pa. 2013), a view this Court also finds compelling.13
Nevertheless, the Court will not revisit Judge Jones’s determination to apply
Abdullah, a determination reached after a careful effort to be faithful to the Third
Circuit’s precedents in this jumbled area of the law.14 (Cf. section V.(a) supra
(deciding to revisit issue previously addressed by Judge Jones where briefs
aviation products liability cases.”).
Judge Bartle would subject defendants like Lycoming to the standards of
“state products liability, negligence, or breach of warranty law.” Id. at 599.
13
Examining the relevant precedents, Judge Jones noted that the Third Circuit
in Elassaad v. Independence Air, Inc., 613 F.3d 119 (3d Cir. 2010), “reaffirmed
that ‘Abdullah’s primary holding was that federal law preempted the entire field of
aviation safety,’” and “strongly, and perhaps explicitly, suggest[ed] that the
manufacture of aircraft parts is . . . contained in this field and, thus, subject solely
to federal standards of care.” Sikkelee I, 731 F. Supp. 2d at 437-38 (quoting
Elassaad, 613 F.3d at 126). See also Pease v. Lycoming Engines, 2011 WL
6339833, at *21-*22 (M.D. Pa. Dec. 19, 2011) (Conner, C.J.) (collecting evidence
for the proposition that “the Third Circuit’s definition of ‘air safety’ litigation
encapsulates aviation product liability cases”).
14
30
submitted to Judge Jones at that time focused primarily on a different issue and
Judge Jones reached his holding based on largely independent analysis)).
Therefore, Abdullah applies.
Her prime position defeated, Sikkelee now offers second-best arguments
purporting to show that the impact of Abdullah on her claims is limited. In
particular, she argues that if her claim is subject to field preemption, then there
must be a federal regulation “at hand” for Lycoming to have violated because
“[t]here can be no pervasive regulation [of the field of aviation safety, thus
preempting the field from state regulation,] if there are no regulations applicable to
[Lycoming’s] aircraft engine design.” (Pl. Opp’n Br. at 43). Relatedly, Sikkelee
argues that Abdullah implies the general principle that aircraft engine designers
should not act carelessly or recklessly, even where no specific federal regulation
governs their conduct, and that if the Court finds that “no general or specific
regulation” reaches Lycoming’s allegedly tortious conduct, then “Lycoming is not
immune . . . [–] there would simply be no preemption.” (Id. at 46).
The Court rejects both arguments. First, Abdullah does not compel the
conclusion that the CARs and FARs imply a general standard of care for aircraft
engine designers. At issue in Abdullah was plaintiffs’s suit for damages sustained
while passengers on the severely turbulent American Airlines Flight 1473. 181
31
F.3d at 365. The plaintiffs brought suit “against defendant American Airlines, Inc.,
alleging negligence on the part of the pilot and flight crew in failing to take
reasonable precautions to avoid the turbulent conditions known to them and in
failing to give warnings reasonably calculated to permit plaintiffs to take steps to
protect themselves.” Id. Judge Roth held that the plaintiffs could recover only if the
conduct of the airline’s personnel fell below federal aviation safety standards.
In reaching this conclusion, Judge Roth analyzed the 1958 Federal Aviation
Act (hereinafter, the “Aviation Act”) and federal regulations concerning aviation
and “f[ound] implied federal preemption of the entire field of aviation safety.”181
F.3d at 365. “[T]he [Aviation Act] and relevant federal regulations establish
complete and thorough safety standards for interstate and international air
transportation and . . . these standards are not subject to supplementation by, or
variation among, jurisdictions.” Id. “[F]ederal law establishes the applicable
standards of care in the field of air safety.” Id. at 367.
Examining federal law in order to identify the relevant standard of care,
Judge Roth held that, in addition to any specific applicable regulations, “there is an
overarching general standard of care under the [Aviation Act] and its regulations[,]
. . . [arising] in particular from 14 C.F.R. § 91.13(a).” Abdullah, 181 F.3d at 365.
Section 91.13(a) of the FARs provides with respect to “aircraft operations for the
32
purpose of air navigation” that “[n]o person may operate an aircraft in a careless or
reckless manner so as to endanger the life or property of another.” 14 C.F.R. §
91.13(a) (2004). Judge Roth instructed that § 91.13(a) should form an aspect of
the standard of care applicable to the aircraft operations at issue in Abdullah on
remand. Abdullah, 181 F.3d at 365.
The case at bar, however, is not an aircraft “operations” case. See 14 C.F.R.
§ 1.1 (2004) (“Aircraft means a device that is used or intended to be used for flight
in the air.” “Operate, with respect to aircraft, means use, cause to use or authorize
to use aircraft, for the purpose . . . of air navigation including the piloting of
aircraft, with or without the right of legal control (as owner, lessee, or otherwise).”)
(emphasis in original). No party argues that this is an “operations” case, and the
Court sees no reasonable argument to be made, see Elassaad v. Independence Air,
Inc., 613 F.3d 119, 129-30 (3d Cir. 2010) (analyzing application of § 91.13 at
length); therefore, § 91.13(a) does not readily supply a general standard of care to
fill gaps left by the relevant FARs and CARs. Accordingly, Abdullah does not
compel the conclusion that aircraft designers are governed by a general standard of
care.
That much is clear, but how the Court should adapt Abdullah to apply in the
context of the case at bar is anything but. See Pease v. Lycoming Engines, 2011
33
WL 6339833, at *23 (M.D. Pa. Dec. 19, 2011) (Conner, C.J.) (“[C]onstruing and
applying FAA safety regulations as federal standards of care in [aircraft product
liability cases] will be arduous and impractical”).15 A major source of the difficulty
is that Judge Roth’s identification of § 91.13(a) (which bears a definite
resemblance to a common law negligence standard) as an aspect of the standard of
care applicable to the aircraft operations at issue in Abdullah seems to have
provided critical support for her decision to find the field of aviation safety
preempted.16 Abdullah,81 F.3d at 365, 376. It is tempting, if for no reason other
Deciding how federal regulations should translate into a standard of care
has proven a bedeviling task in other contexts as well. See, e.g., In re TMI, 67 F.3d
1103, 1107 (3d Cir. 1995) (“Although it is clear that federal law governs the
standard of care for tort claims arising from nuclear accidents, it is more difficult to
discern the precise contours of that federal duty”).
15
The existence of a “general standard” backstopping the “specific standards”
set forth in the relevant federal regulations seems to have been an important aspect
of Abdullah. Faulting the trial judge for the “narrow nature of the federal standard”
applied below, Abdullah, 181 F.3d at 365, Judge Roth reasoned that, “[i]n a case . .
. where there is no specific provision or regulation governing air safety, § 91.13(a)
provides a general description of the standard required for the safe operation of
aircraft,” id. at 371:
16
Thus, in determining the standards of care in an aviation negligence
action, a court must refer not only to specific regulations but also to the
overall concept that aircraft may not be operated in a careless or reckless
manner. The applicable standard of care is not limited to a particular
regulation of a specific area; it expands to encompass the issue of
whether the overall operation or conduct in question was careless or
reckless.
34
than an appreciation of symmetry, to conclude that because Judge Roth found the
field of aviation safety federally preempted at least partly because she derived a
general standard of care from the federal regulations applicable in Abdullah, that
placing the facts of this case within the preempted field (as Judge Jones did)
implies the existence of a general standard of care.
The Court is faced with an uncomfortable choice: (1) read an “overall
concept” of careful conduct into the federal regulations, dissociated from any
anchor in the text, or (2) apply only the standards specifically enunciated in the
relevant federal regulations, leaving gaps unfilled by any overall concept of care,
thus taking a sledgehammer to one of the pillars (load-bearing or ornamental?) that
underlaid Judge Roth’s finding of preemption in Abdullah.17
Id. And faulting the Tenth Circuit’s decision in Cleveland v. Piper Aircraft Corp.,
985 F.2d 1438 (10th Cir. 1993), abrogated by U.S. Airways, Inc. v. O’Donnell,
627 F.3d 1318 (10th Cir. 2010), for concluding that, because state common law
duties do not conflict with duties imposed by the federal aviation safety
regulations, federal law therefore does not preempt the common law, Judge Roth
wrote that “there is no gap in the federal standards to fill with a state common law
standard [because] [t]he § 91.13(a) prohibition of ‘careless or reckless’ operation
of an aircraft occupies the apparent void.” Abdullah, 181 F.3d at 374. “[B]ecause
the Administrator [of the FAA] has provided both general and specific standards,
there is no need to look to state or territorial law to provide standards beyond those
established by the Administrator.” Id.
A third option that would normally be available – to fill the gaps with state
common law not inconsistent with any specific federal regulation – is unavailable
as a consequence of Judge Jones’s decision that this case is within the field of
17
35
aviation safety governed by Abdullah: “If Congress has preempted a field –
whether it be expressly or by implication – state laws attempting to regulate within
that field will be invalidated no matter how well they comport with substantive
federal policies.” Abdullah, 181 F.3d at 374 (internal quotation marks omitted).
See also Arizona v. United States, 132 S. Ct. 2492, 2502 (2012) (“Field
preemption reflects a congressional decision to foreclose any state regulation in the
area, even if it is parallel to federal standards.”).
A fourth option is Judge Bartle’s approach – to hold that aircraft design
defect cases are not within the field governed by Abdullah – but Judge Jones’s
previous ruling likewise precludes taking this option. See also Martin v. Midwest
Express Holdings, Inc., 555 F.3d 806, 811 (9th Cir. 2009) (“[W]hen the agency
issues ‘pervasive regulations’ in an area, like passenger warnings, the FAA
preempts all state law claims in that area. In areas without pervasive regulations or
other grounds for preemption, the state standard of care remains applicable.”).
There may be yet a fifth option, though it seems to have been eliminated by
the Third Circuit’s decision in In re TMI, 67 F.3d 1103 (3d Cir. 1995), a case that
set the groundwork for the Circuit Court’s approach in Abdullah, 181 F.3d at 367.
Four years prior to the 1995 TMI decision, Judge Scirica concurred in an earlier
Judge Mansmann opinion in the same case, 940 F.2d 832 (3d Cir. 1991), but
doubted Judge Mansmann’s holding that, because the federal government occupied
the field of nuclear safety, “plaintiffs’ rights [in nuclear safety torts actions] will
necessarily be determined, in part, by reference to federal law, namely the federal
statutes and regulations governing the safety and operation of nuclear facilities.”
TMI, 940 F.2d at 860. Judge Scirica wrote,
[I]t is not clear to me that Congress has precluded state law tort suits
predicated on standards of care that do not conform to federal regulation.
As the majority notes, in Pacific Gas & Electric Co. v. State Energy
Resources Conservation and Development Commission, 461 U.S. 190,
103 S.Ct. 1713, 75 L.Ed.2d 752 (1983), the Court held that the Atomic
Energy Act pre-empts all state regulation of nuclear safety. But in
Silkwood v. Kerr–McGee Corp., 464 U.S. 238, 104 S.Ct. 615, 78
L.Ed.2d 443 (1984), the Court considered the holding of Pacific Gas in
the context of private tort law. In Silkwood, the Court held that Congress
did not intend to pre-empt punitive damages awards under state tort law.
36
Sikkelee would have the Court pick option (1), but the Court thinks option
The Court relied on the legislative history of the Price–Anderson Act,
which indicated that Congress intended to retain all state tort law
remedies. The Court noted that “Congress assumed that traditional
principles of state tort law would apply with full force unless they were
expressly supplanted,” and that the defendant has the burden of
demonstrating pre-emption. Id. at 255, 104 S.Ct. at 625. It also indicated
that a state may impose strict liability for nuclear accidents. Id. at 254,
256, 104 S.Ct. at 625. See also Goodyear Atomic Corp. v. Miller, 486
U.S. 174, 186, 108 S.Ct. 1704, 1712–13, 100 L.Ed.2d 158 (1988)
(Characterizing Silkwood as finding that “Congress was willing to
accept regulatory consequences of application of state tort law to
radiation hazards even though direct state regulation of safety aspects of
nuclear energy was pre-empted.”).
If state tort law may hold a nuclear plant operator strictly liable, or
establish some other standard of care that does not conform to federal
regulation, the federal law quotient in public liability actions would be
decreased. As noted in the majority opinion, notwithstanding Silkwood,
at least two district courts have found that the Price–Anderson Act
pre-empts state tort suits that do not adopt federal regulations as the
standard of care. See Hennessy v. Commonwealth Edison Co., 764
F.Supp. 495 (N.D.Ill.1991); O'Conner v. Commonwealth Edison Co.,
748 F.Supp. 672 (C.D.Ill.1990). In Hennessy, however, the court left
open the issue of whether state law may impose strict liability for nuclear
incidents.
Unlike the majority, I would not decide these issues here.
TMI, 940 F.2d at 870 (Scirica, J., concurring). Four years later, however, Judge
Scirica held that Judge Mansmann’s ruling “controls, and federal law determines the
standard of care and preempts state tort law” in the field of nuclear safety. TMI, 67
F.3d at 1107.
37
(2) is the better choice. By what principle could the Court choose option (1)? To do
so would undermine an unambiguously crafted – and therefore, the Court
presumes, deliberate – regulatory scheme. The relevant regulations prohibit
careless or reckless aircraft operation generally. Makers of aircraft engines and
components, in contrast, are subject only to specific regulations devised to ensure
engine safety; Sikkelee points to no regulation imposing a generally applicable
standard of care functioning as a catchall; once the engine or component-maker has
complied with the specific regulations, he has met any standard of care the federal
regulations can be said to constitute. Moreover, since this is an area in which this
Court has no “authority to formulate federal common law . . . absent some
congressional authorization to formulate substantive rules of decision,” Texas
Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630 640-41 (1981), and “neither . .
. Abdullah, nor any language in the FAA contemplates such [rules],” Martin v.
Midwest Express Airlines, Inc., 555 F.3d 806, 811 (9th Cir. 2009) (“The [Aviation
Act] itself makes no mention of federal courts developing a federal common law
standard of care for airplane personal injury actions . . . .”), the Court does not
view the creation of federal common law as an option. Ultimately, Sikkelee’s
argument for a general standard of care represents a mere policy disagreement with
the regulations as written, and for the Court to follow Sikkelee’s approach would
38
be the functional equivalent of filling in the gaps left by the FARs and CARs with
state common law, which is anathema to the very notion that the field is
preempted. The Court will not travel this road.
Of course, option (2) is not without its drawbacks, which have been
foreshadowed supra. Not recognizing a general prohibition on careless or reckless
conduct leaves gaps in the regulatory scheme governing makers of aircraft engines
and components. These gaps are problematic in the sense that they give one pause
before concluding that the case at bar is within the field of preemption identified in
Abdullah. See Abdullah, 181 F.3d at 367 (“[I]mplied federal preemption may be
found where federal regulation of a field is pervasive . . . or where state regulation
of the field would interfere with Congressional objectives.”) (internal citations
omitted).
Gaps are, however, not terribly problematic once it has been determined –
and it has been, by Judge Jones – that this case is within a preempted field, and this
is so even if Sikkelee is left remediless because she cannot identify any relevant
federal regulation that Lycoming has violated.
In other words, Sikkelee is incorrect when she suggests that “[t]here can be
no pervasive regulation [of the field of aviation safety, thus preempting the field
from state regulation,] if there are no regulations applicable to [Lycoming’s]
39
aircraft engine design.” (Pl. Opp’n Br. at 43). So long as its intent is clearly
expressed, Congress’s decision to leave an area unregulated by both the federal and
state governments preempts the field as effectively as its decision to have federal
law regulate so comprehensively that state law supplementation is undesirable. See
Puerto Rico Dept. Of Consumer Affairs v. Isla Petroleum Corp., 485 U.S. 495, 503
(1988). Moreover, where Congress determines that common law tort claims should
play no role in a regulatory scheme, preemption may leave an injured person
remediless. See, e.g., Kurns v. R.R. Friction Prods. Corp., 132 S. Ct. 1261 (2012)
(Locomotive Inspection Act preempted defective design/warning claims of railroad
locomotive repairman exposed to asbestos, leaving repairman remediless).18 Stated
conversely, the absence of federal regulation that reaches Lycoming’s allegedly
tortious conduct does not necessarily imply that “there [is] simply . . . no
preemption.”19
This result obtained even though relevant federal regulations did not
address hazards arising from locomotive repair. Indeed, the agency to which
Congress delegated regulatory authority had never regulated locomotive repair and
disclaimed the power to do so. Kurns, 132 S. Ct. at 1274 (Sotomayor, J.,
concurring in part and dissenting in part). Despite the consequent regulatory gap,
the Supreme Court’s field preemption holding “[left] petitioners without a remedy
for what they allege was fatal exposure to asbestos in repair facilities.” Id. at 1275.
18
Of course, Abdullah held neither that Congress desired to leave the field of
aviation safety unregulated, nor that Congress envisioned no regulatory role for
state common law remedies to play. As the Third Circuit has clarified,
19
40
Thus, in accordance with Judge Jones determination that Abduallah controls
and Sikkelee’s failure to provide persuasive reasons for undergirding the relevant
specific federal regulations with a general standard of care, the Court will choose
option (2) supra. The Court will measure Lycoming’s allegedly tortious conduct
against the specific federal regulations that Sikkelee asserts are applicable; if there
is no genuine issue as to whether Lycoming violated the specific regulations, then
summary judgment in Lycoming’s favor is warranted.
(d)
Type certification of the O-320-D2C entitles Lycoming to summary
judgment on the design-related regulatory grounds asserted by
Sikkelee.
Lycoming argues that type certification of the O-320-D2C renders a number
of Sikkelee’s claims – namely those alleging failure to comply with regulations
We did not conclude in Abdullah that the passengers’ common law
negligence claims themselves were preempted; instead, we determined
only that the standard of care used in adjudicating those claims was
preempted. Local law still governed the other negligence elements
(breach, causation, and damages), as well as the choice and availability
of remedies.
Elassaad, 613 F.3d at 125. The Court mentions the extreme case of Congress
leaving an area totally unregulated simply to illustrate that, contrary to Sikkelee’s
contention, the federal government’s pervasive regulation of the field of aviation
safety does not imply that there must there be a federal regulation “at hand” for
Lycoming to have violated.
41
governing the design of aircraft engines – a dead letter:
The FAA alone establishes the regulations governing the design
requirements for aircraft engines, and the FAA alone, through the type
certification process, decides whether the standards of care it has created
by those regulations have been met. . . . [T]he question of whether any
standards in those regulations were met cannot exist separately from the
issuance of the type certificate. Under field preemption, the standards
can only be what the FAA defines them to be, and the FAA alone
decides if they have been met.
(Def. Supp. Br. at 34).
Sikkelee disagrees, arguing that Lycoming’s position is contrary to the
United States Supreme Court’s decision in United States v. S.A. Empresa de
Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797 (1984), and contrary
to Chief Judge Conner’s decision in Pease, 2011 WL 6339833, at *13-*14 (M.D.
Pa. Dec. 19, 2011).
To evaluate the significance of the O-320-D2C’s type certificate for
Sikkelee’s claims, the Court must examine the regulatory basis for Sikkelee’s
assertion that Lycoming breached “federal standards related to design and
continued airworthiness.” (Pl. Opp’n Br. at 30). Sikkelee cites to four regulations
that she supposes comprise a federal standard of care for aircraft engine design:
CAR § 13.100, CAR § 13.101, CAR § 13.104, and CAR § 13.110(a) (1964). Each
of these provisions is taken from the CARs’s Part 13, which says of the
42
“[a]pplicability of this part” that it “establishes standards with which compliance
shall be demonstrated for the issuance of and changes to type certificates for
engines used on aircraft.” CAR § 13.0 (1964)). Part 13 further provides that
[a]n engine shall be eligible for type certification under the provisions of
this part if it complies with the airworthiness provisions hereinafter
established or if the Administrator20 finds that the provision or provisions
not complied with are compensated for by factors which provide an
equivalent level of safety: Provided, That the Administrator finds no
feature or characteristic of the engine which renders it unsafe for use on
aircraft.
CAR § 13.10. At CAR § 13.13(a), it is further provided, in relevant part, that “[a]n
applicant shall be issued a type certificate when he demonstrates the eligibility of
the engine by complying with the requirements of this part.”
An applicant for type certification “demonstrates the eligibility” of his
engine by “submit[ting] to the Administrator . . . descriptive data, test reports, and
computations.” CAR § 13.14(a). The descriptive data is
known as the type design and shall consist of such drawings and
specifications as are necessary to disclose the configuration of the engine
and all the design features covered in the requirements of this part, such
information on dimensions, materials, and processes as is necessary to
define the structural strength of the engine, and such other data as are
necessary to permit by comparison the determination of the
airworthiness of subsequent engines of the same type.
CAR § 13.14(b).
20
Defined as the then-existing Administrator of Civil Aeronautics.
43
Finally, under the heading of “[d]esign and [c]onstruction,” there are the
provisions that Sikkelee asserts Lycoming violated. Part 13 provides that
reciprocating engines (like the O-320-D2C) should, as a general matter, “not
incorporate design features or details which experience has shown to be hazardous
or unreliable.” CAR § 13.100(a). The sections that follow, CARS §§ 13.10113.115 (hereinafter, along with CAR § 13.100(a), the “design and construction
regulations”), set forth specific standards for design devised by regulators to ensure
safety when an engine is “installed, operated, . . . maintained in accordance with
the instruction manual . . . and . . . fitted with an appropriate propeller.” CAR §
13.100(b). Sikkelee asserts that there is a genuine issue of material fact concerning
whether Lycoming violated three of these:
CAR § 13.101 – The suitability and durability of all materials used in
the engine shall be established on a basis of experience or tests. All
materials used in the engine shall conform to approved specifications
which will insure their having the strength and other properties assumed
in the design data.
CAR § 13.104 – All parts of the engine shall be designed and
constructed to minimize the development of an unsafe condition of the
engine between overhaul periods.
CAR § 13.110(a) – The fuel system of the engine shall be designed and
constructed to supply an appropriate mixture of fuel to the cylinders
throughout the complete operating range of the engine under all flight
and atmospheric conditions.
44
In tension with Sikkelee’s assertion that Lycoming has violated these provisions,
the FAA’s issuance of a type certificate for the O-320-D2C in 1966 denotes the
Administrator’s finding that the engine met all applicable requirements. See CAR §
13.13(a) (“An applicant shall be issued a type certificate when he demonstrates the
eligibility of the engine by complying with the requirements of this part.”).
Lycoming argues that the FAA’s determination is conclusive.
The Court holds that Lycoming is entitled to summary judgment on
Sikkelee’s claims asserting violations of CAR §§ 13.100(a), 13.101, 13.104, and
13.110. As set forth supra, each of the cited regulations establishes a requirement
that applicants must satisfy in order to obtain a type certificate, and it is the
Administrator alone who decides whether a certificate should be issued. To hold as
Sikkelee proposes, the Court would be required to take two questionable steps
away from the apparent regulatory scheme. First, the design and construction
regulations would have to be read as freestanding mandates possessing a meaning
independent of that given them by the Administrator’s application, not as mere
prerequisites for type certification, an interpretation without apparent basis in the
regulation. Cf. Martin, 555 F.3d at 814 (Bea, J., concurring) (“[I]n the field of
aircraft design regulation, the FAA directs only the conditions under which the
government may grant an aircraft design a ‘certificate’ that permits production; the
45
FAA does not prescribe general standards the manufacturer must follow to exercise
reasonable care in designing a safe aircraft.”). Second, the Administrator would be
dethroned as the arbiter of whether the requirements set forth in the design and
construction regulations have been met. How else – after the Administrator’s
decision to type certify the O-320-D2C in 1966 – could the Court allow a jury to
reconsider Lycoming’s compliance with the design and construction regulations?
The Court concludes that the natural interpretation of the regulatory scheme
commands that, under the circumstances, Sikkelee is precluded from proving that
Lycoming violated CAR §§ 13.100(a), 13.101, 13.104, and 13.110 as a matter of
law.21
In Pease, Chief Judge Conner concluded that “[t]here is simply no textual
support in either the Abdullah decision or the Aviation Act that Congress intended
the FAA to act as the sole arbiter of whether manufacturers have complied with its
own regulations.” This Court disagrees, at least with respect to the design and
construction regulations.
The issue is complicated. In the Aviation Act, Congress gave the
Administrator the “duty to promote safety of flight of civil aircraft in air commerce
by prescribing and revising from time to time . . . [s]uch minimum standards
governing the design, materials, workmanship, construction, and performance of . .
. aircraft engines . . . as may be required in the interest of safety.” 49 U.S.C. § 1421
(1964). Here, the language suggests that the minimum standards are to be
prescribed by the Administrator, but that (at least theoretically) anyone might
evaluate compliance with them. At 49 U.S.C. § 1423(a) (1964), however, the
“Administrator is empowered to issue type certificates for . . . aircraft engines,”
and it is commanded that “he shall issue a type certificate” once he finds – after
“investigation[s],” “hearings,” and “tests” for his consideration – “that such . . .
aircraft engine . . . is of proper design, material, specification, construction, and
21
46
Varig Airlines is not to the contrary. Even Sikkelee does not argue that the
holding of the case – i.e., that tort claims against the FAA for alleged negligence in
certificating aircraft for use in commercial aviation are barred by the discretionary
function exception of the Federal Tort Claims Act – controls here. Rather, Sikkelee
posits that Chief Justice Burger’s description of the FAA’s role in type certification
mandates that a jury should be permitted to revisit Lycoming’s compliance with
the design and construction regulations. (See Pl. Opp’n Br. at 44).
In Varig Airlines, Chief Justice Burger explained that the FAA had
“implement[ed] [a] ‘spot-check’ system of compliance review” for determining
performance for safe operation, and meets the minimum standards, rules, and
regulations prescribed by the Administrator.” Congress’s creation of this apparatus
suggests an intention to give the Administrator sole responsibility for not only
prescribing minimum standards, but also for interpreting and applying them in the
process of deciding whether an engine is sufficiently safe for the use of pilots and
passengers.
As discussed supra, the regulations promulgated by the Administrator in
accordance with Congress’s mandates show that he viewed “minimum standards
governing design” merely as a framework for determining an applicant’s
entitlement to a type certificate, see CAR § 13.0 (“This part establishes standards
with which compliance shall be demonstrated for the issuance of and changes to
type certificates for engines used on aircraft.”), and viewed himself as the arbiter of
compliance with the standards. The Court should defer to the Administrator’s
interpretation. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S.
837, 843-45 (1984). Moreover, as discussed infra, the design and construction
regulations are sufficiently vague that, unless the Administrator is given sole
responsibility for their interpretation and application, it is difficult to see how
Congress’s intention that “the Administrator . . . exercise sole discretion in
regulating air safety,” Abdullah, 181 F.3d at 369, can be accomplished.
47
whether an applicant meets the type certification prerequisites:
The FAA certification process is founded upon a relatively simple
notion: the duty to ensure that an aircraft conforms to FAA safety
regulations lies with the manufacturer and operator, while the FAA
retains the responsibility for policing compliance. Thus, the
manufacturer is required to develop the plans and specifications and
perform the inspections and tests necessary to establish that an aircraft
design comports with the applicable regulations; the FAA then reviews
the data for conformity purposes by conducting a “spot check” of the
manufacturer’s work.
467 U.S. at 816-17, 819. In Sikkelee’s view, the FAA’s approach to determining
compliance with the design and construction regulations is too hands-off and
would benefit from a jury’s assistance. Therefore, argues Sikkelee, a jury’s
reconsideration of Lycoming’s compliance with the regulations must be permitted.
Sikkelee’s argument is lent some credence by Chief Judge Conner’s
acceptance of its essentials in Pease, where the Chief Judge wrote that jury
reconsideration of a manufacturer’s compliance with the design and construction
regulations “pragmatically recognizes the limitations of FAA certification.” 2011
WL 6339833, at *14. “Moreover,” in the Chief Judge’s view,
there is a salutary effect of opening the courthouse door: “An inquiry ...
into whether the manufacturer in fact complied with the regulations ...
would assist the FAA in policing a manufacturer’s compliance rather
than hampering the agency in this regard.” [Elsworth v. Beech Aircraft
Corp., 691 P.2d 630, 636 (Cal. 1984)]. In the case sub judice, the
[plaintiffs’s] products liability claims regarding the airworthiness of [an]
engine serve the public interest of ensuring that [the defendant48
manufacturer] complied with all applicable FAA regulations. The
[plaintiffs’s] claims will not disrupt the “uniform system of regulation”
desired by Congress because the FAA still has sole authority to
promulgate regulations. See Abdullah, 181 F.3d at 368.
Pease, 2011 WL 6339833, at *14.
To this Court, the Chief Judge’s reasoning is incomplete. A jury trial will
have the “salutary effect” of “ensuring . . . compli[ance] with all applicable FAA
regulations” only if one makes the assumption that a jury will interpret and apply
the FAA regulations as would the Administrator himself. But there is no reason to
think this assumption will hold in reality. The jury might also interpret and apply
the regulations in a more demanding fashion than the Administrator, in which case
a trial will have the unsalutary effect of invading the federally preempted field of
aviation safety.
In this Court’s view, that the jury’s interpretation and application of the
CARs will vary from the Administrator’s is more than likely. As Chief Judge
Conner himself wrote in Pease, “The applicable FAA regulations are acutely
technical and often incurably vague.” 2011 WL 6339833, at *23. Indeed, when the
regulations provide that an “engine shall not incorporate design features or details
which experience has shown to be hazardous or unreliable,” CAR § 13.100(a), how
much experience is contemplated? What are the relevant hazards? If the “suitability
49
and durability of all materials used in the engine shall be established on the basis of
experience or tests,” CAR § 13.101, how much experience or testing is required? If
“[a]ll parts of the engine shall be designed and constructed to minimize the
development of an unsafe condition of the engine between overhaul periods,” CAR
§ 13.104, how small should the probability of the development of an unsafe
condition be? If the “fuel system of the engine shall be designed and constructed to
supply an appropriate mixture of fuel to the cylinders throughout the complete
operating range of the engine under all flight and atmospheric conditions,” CAR §
13.110(a), does this contemplate a negligence or strict standard of liability or, more
likely, is it merely a way of expressing that the system should prove its fitness
through the “[i]nspections and tests . . . found necessary by the Administrator,”
CAR § 13.15? What should be made of CAR 13.10, which provides that, even if
the engine does not satisfy the design and construction regulations, the engine may
still be considered safe when the “provisions not complied with are compensated
for by factors which provide an equivalent level of safety”?
Faced with these imponderables, the parties, the Court and the jury will
likely resort to more familiar negligence standards, a problematic outcome in this
federally preempted field. In this regard, Judge Scirica’s decision in In re TMI is
instructive. 67 F.3d 1103 (3d Cir. 1995). In TMI, plaintiffs sought to recover in tort
50
for injuries allegedly caused by the Three Mile Island nuclear meltdown. As in
Abdullah, the Third Circuit held that, in light of federal preemption of the field of
nuclear safety, “federal law determines the standard of care.” Id. at 1107. The
Third Circuit then endeavored to “discern the precise contours of that federal duty”
and rejected plaintiffs’s attempt to fashion a standard of care out of a regulation
requiring applicants for “a permit to construct a nuclear power reactor[] [to]
identify the design objectives, and the means to be employed, for keeping levels of
radioactive material in effluents to unrestricted areas as low as is reasonably
achievable.”22 Id. at 1107, 1109 (quoting 10 C.F.R § 50.34a(a)). Agreeing with the
trial judge that the “as low as is reasonably achievable” requirement – deemed the
“ALARA” standard – resulted “essentially, in a negligence standard,” Judge
Scirica reasoned that “[a]dopting ALARA as part of the standard of care would put
juries in charge of deciding the permissible levels of radiation exposure and, more
generally, the adequacy of safety procedures at nuclear plants – issues that have
explicitly been reserved to the federal government in general and the [Nuclear
The regulations defined “‘as low as reasonably achievable’” to mean “‘as
low as is reasonably achievable taking into account the state of technology, and the
economics of improvements in relation to benefits to the public health and safety
and other societal and socioeconomic considerations, and in relation to the
utilization of atomic energy in the public interest.’” TMI, 67 F.3d at 1109 (quoting
10 C.F.R § 50.34a(a)).
22
51
Regulatory Commission] specifically.” TMI, 67 F.3d at 1115. He continued,
Adoption of a standard as vague as ALARA would give no real guidance
to operators and would allow juries to fix the standard case by case and
plant by plant. An operator acting in the utmost good faith and diligence
could still find itself liable for failing to meet such an elusive and
undeterminable standard. Our holding protects the public and provides
owners and operators of nuclear power plants with a definitive standard
by which their conduct will be measured.
Id.
Jury interpretation and application of the design and construction standards
in the case at bar will poke at the same hornets’s nest identified by Judge Scirica.
No less than if jurors were permitted to subject manufacturers to state common law
duties, jury interpretation and application of the design and construction
regulations would put jurors in charge of deciding permissible safety levels and
engine designs – issues left to the Administrator. Jurors would fix the standard case
by case and engine by engine, resulting in an elusive and undeterminable standard,
as opposed to the “one, consistent means of regulating aviation safety” that
Congress intended. Abdullah, 181 F.3d at 372.
Therefore, the Court cannot conclude that the supposed inadequacies23 in the
That it relies heavily on manufacturers is not an unambiguously flawed
aspect of the type certification process. Granted, agents of the manufacturers are
burdened by a conflict of interest that could make them prone to cut corners in the
manufacturer’s favor. On the other hand, they likely “possess detailed knowledge
of an aircraft[] [or engine’s] design based upon their day-to-day involvement in its
23
52
type certification process imply that the jury should be employed to “ensur[e] that
Lycoming complied with all applicable FAA regulations.” Pease, 2011 WL
6339833, at *14. Rather than ensure such compliance, jury reconsideration of the
design and construction requirements (in this case and others) promises to “disrupt
the ‘uniform system of regulation’ desired by Congress” and achieved by putting
responsibility for type certification with the Administrator. Id.
Accordingly, this Court holds that the Administrator’s issuance of a type
certificate for the O-320-D2C is conclusive of the engine’s compliance with the
design and construction regulations. Lycoming’s motion for summary judgment on
Sikkelee’s claims predicated on the violation of these regulations should be
granted.
(e)
Sikkelee’s claims may move forward on the theory that Lycoming
violated its duty to report engine defects to the FAA.
The Court holds that Lycoming is entitled to summary judgment in relation
to additional FARs,24 primarily because these FARs are meant to ensure that
development,” Varig Airlines, 467 U.S. at 807, knowledge that could make their
work more accurate and efficient than that of FAA officials.
Sikkelee has asserted in previous filings that Lycoming violated additional
FARs, but the Court assumes that, by not addressing these regulations in her brief,
she has abandoned any claims based on them.
24
53
products conform to a type design found safe by the Administrator.25 Sikkelee does
not claim or proffer evidence showing that the replacement carburetor did not
conform to its type design (see Pl. Opp’n Br. at 30 (“There is no claim here of
defective manufacture.”)); she claims, rather, that the replacement carburetor
conformed to a defective type design. Fundamentally, Sikkelee’s claims and her
evidence in support of them are mismatched with these regulations.
Sikkelee asserts that Lycoming, as holder of a production certificate for the
O-320-D2C, violated its responsibility to “[d]etermine that each part and
completed product . . . submitted for airworthiness certification or approval
conforms to the approved design and is in a condition for safe operation.” (Pl.
Opp’n Br. at 32 (citing14 C.F.R. § 21.165(b) (2004)).
The Court disagrees. Sikkelee proffers no evidence showing that the
allegedly defective replacement carburetor did not conform to its “approved
design”; she states the opposite multiple times. (Pl. Facts ¶¶ 10, 12, 13). She also
does not proffer evidence showing that David’s crash was caused by Lycoming’s
alleged failure to determine that the carburetor was in a “condition for safe
Sikkelee’s briefs are as exacting as a shock and awe bombing campaign; as
a result, the Court sometimes strains to understand how, in her view, a given
regulation is relevant. The discussion infra represents the Court’s best effort to
make sense of Sikkelee’s arguments.
25
54
operation.” For one thing, Lycoming’s § 21.165 duty applied (if at all) in 1978 –
i.e., when the replacement carburetor was hot off the assembly line and initially
submitted for airworthiness certification – not in 2004 when Kelly overhauled the
replacement carburetor. Sikkelee directs the Court to no evidence showing that
Lycoming breached its § 21.165 duty in 1978 or that such breach contributed to the
2005 accident. And there is another hurdle: assuming arguendo that Lycoming’s §
21.165 duties extended to Kelly’s submission of the replacement carburetor for
airworthiness certification in 2004, Sikkelee directs the Court to no evidence
showing that Kelly’s submission was not in a “condition for safe operation.”
According to the FAA, an “engine is in a condition for safe operation when
the condition of the engine considering such factors such as wear, damage, and
deterioration does not prevent the engine from demonstrating compliance with
those requirements of [the airworthiness standards for type certificate issuance]
that relate to the safe operation of the engine, and does not result in an unsafe
condition to the aircraft.” (Pl. Opp’n Br. at 37 (citing FAA AC 33.4-1, Instructions
for Continued Airworthiness (Aug. 27, 1999)). Sikkelee blames David’s crash on
the O-320-D2C’s carburetor, specifically the MA-4SPA’s “throttle body to float
bowl screws [coming] loose due to the faulty design of the lock tab washers as well
55
as gasket set.” (Pl. Facts ¶ 16).26 But during its 2004 overhaul, Kelly installed “new
throttle body to bowl screws and lock tab washers as an attachment system,” and
the engine was adorned with an airworthiness approval tag. (Pl. Facts ¶¶ 12, 14).27
Sikkelee proffers no evidence that “the condition of the engine considering factors
such as wear, damage, and deterioration” was a factor in the crash; the “condition”
of the engine allowed it to function with the same potential for failure as a new
engine that conformed to Lycoming’s (allegedly defective) type design.28 Since
there is neither evidence showing that the replacement carburetor did not conform
to the approved design, nor evidence showing that the replacement carburetor was
not in a condition for safe operation, Lycoming is entitled to summary judgment to
(See also Pl. Opp’n Br. at 15 (“Plaintiff’s expert found that loose throttle
body to bowl screws caused a loss of engine power, which was a causal factor in
the crash at issue.”)).
26
(See also Pl. Facts ¶ 13 (“Lycoming instructed carburetor overhaulers to
follow Precision’s manual, which Kelly did, requiring new throttle body to bowl
screws and lock tab washers as an attachment system. This defective method of
throttle body to bowl attachment for the O-320 series engines was part of the O320 engine type design, and approved by Lycoming.”)
27
Presumably, then, the subject engine was also no less likely than a new
engine to “demonstrat[e] compliance with those requirements of [the airworthiness
standards for type certificate issuance] that relate to the safe operation of the
engine . . . [and to not] result in an unsafe condition to the aircraft.” To the extent
the subject engine would not have demonstrated such compliance or did
compromise safety, the design – not the “condition” – of the engine was the
problem.
28
56
the extent Sikkelee’s claims are based on the violation of 14 C.F.R. § 21.165.
For much the same reason, Sikkelee fails in her assertion that Lycoming
violated regulations requiring it to provide “Instructions for Continued
Airworthiness.” (Pl. Opp’n Br. at 40-43). First, the relevant CAR – CAR § 13.21
(1964) – actually calls for the type certificate applicant to prepare “an approved
manual containing instructions for the installation, operation, servicing,
maintenance, repair, and overhaul of the engine”; the requirement of “Instructions
for Continued Airworthiness” came later, as did most of the supposed “standards”
to which Sikkelee cites. CAR § 13.21 does not supply a “standard.” In any case,
the concept of “airworthiness” simply denotes that an engine “conforms to its type
certificate” and “is in a condition for safe operation.” (Pl. Opp’n Br. at 36 (citing
FAA AC 33.4-1, Instructions for Continued Airworthiness (Aug. 27, 1999)). As
discussed supra, Sikkelee does not claim that the supposedly defective carburetor
failed to conform to Lycoming’s type design, and the part of the carburetor that
allegedly caused David’s crash was in a condition for safe operation as defined by
the FAA.
Moreover, Sikkelee does not really allege or proffer evidence in support of
the claim that Lycoming did not comply with the applicable regulations requiring
Instructions for Continued Airworthiness. Her position, rather, is that “Lycoming
57
was required to use reasonable care in the design of its continued airworthiness
instructions” and failed to do so. (Pl. Opp’n Br. at 41). But there is nothing in the
regulations themselves that imposes a reasonable care standard on Lycoming in
this regard; Sikkelee has overlaid that common law standard on top of Lycoming’s
duty to comply with the federal regulations. Contrary to Sikkelee’s view that
“[t]his is a negligence case where Lycoming is held to the standard of reasonable
care in complying with the minimum federal regulations” (Pl. Opp’n Br. at 27), it
is the minimum regulations themselves that constitute the standard of care.
Accordingly, Lycoming is entitled to summary judgment to the extent Sikkelee’s
claims are based on a violation of CAR § 13.21.
That leaves Sikkelee’s claims based on Lycoming’s alleged violation of 14
C.F.R. §§ 21.3 and 21.99 (2004). With respect to § 21.99(b), which provides that
“the holder of [a] type certificate [who] finds through service experience that
changes in type design will contribute to the safety of the product . . . may submit
appropriate design changes for approval [of the Administrator],” Lycoming should
be granted summary judgment. Section 21.99(b) is permissive; it does not create a
duty. Sikkelee’s argument to the contrary – that “[i]t is for a jury to determine
whether Lycoming should have issued a design change pursuant to § 21.99(b)
[because] [t]his is a negligence case where Lycoming is held to the standard of
58
reasonable care in complying with the minimum federal regulations” (Pl. Opp’n
Br. at 27) – has already been rejected by this Court. It is the minimum regulations
themselves that constitute the standard of care, and since § 21.99(b) does not
impose a standard of care on Lycoming, it cannot serve as the basis for Sikkelee’s
claims.
So Sikkelee is left with 14 C.F.R. § 21.3, the regulation to which she devotes
by far the most attention in her brief (Pl. Opp’n Br. at 8-26), and (relatedly) §
21.99(a). Under § 21.3(a), holders of type certificates are required to “report any
failure, malfunction, or defect in any product, part, process, or article” that they
manufactured, if the holder determines that the item “has resulted in any of
[various] occurrences,” including “engine failure.” 14 C.F.R. § 21.3(a). If the item
left the holder’s quality control system, then under § 21.3(b) the holder must report
any defect “that it determines could result in any of [various] occurrences,” again
including “engine failure.” Sikkelee proffers a variety of evidence tending to show
that Lycoming knew of a defect in the O-320-D2C (namely the MA-4SPA
carburetor), but hid the defect from the FAA, arguably preventing the
Administrator from ordering “design changes . . . to correct the unsafe condition”
under § 21.99(a). (Pl. Opp’n Br. at 15-27; Pl. Facts ¶¶ 16-34).
Lycoming raises four defenses: (1) §21.3 “does not apply to Lycoming
59
because [Lycoming] did not manufacture the [replacement] carburetor, and the
carburetor did not pass through Lycoming’s quality control system; (2) “[n]o
evidence exists that Lycoming ever determined that a failure, defect, or
malfunction in the subject carburetor could or did result in any of the enumerated
safety risks”; (3) Lycoming’s reporting obligation was lifted by the previous
reports of others (citing 14 C.F.R. § 21.3(d) (reporting is not necessary when the
type certificate holder “knows” that the failure, malfunction, or defect was already
reported to the FAA by another person)); and (4) “[n]o evidence exists in this case
that [a report from Lycoming to the FAA] would have caused the FAA to issue an
Airworthiness Directive29 or otherwise mandate a design change.” (Def. Supp. Br.
at 24-27).
The Court rejects Lycoming’s first argument because it mischaracterizes
Sikkelee’s theory of liability. In the Court’s understanding, Sikkelee posits that had
Lycoming complied with its § 21.3 reporting responsibilities in relation to the
O-320-D2C engines (incorporating MA-4SPA carburetors) that were manufactured
by Lycoming or did go through its quality control system, then a type design
Airworthiness Directives are issued by the FAA when the agency “finds
that . . . [a]n unsafe condition exists in [a] product.” 14 C.F.R. § 39.5 (2004). The
Directive “specif[ies] inspections you [i.e., the operator of a given aviation
product] must carry out, conditions and limitations you must comply with, and any
actions you must take to resolve an unsafe condition.” 14 C.F.R. § 39.11 (2004)
29
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change would have been mandated by the Administrator, which would have
changed the design of even those carburetors that were not manufactured by
Lycoming. Since the identity of the manufacturer of the replacement carburetor is
irrelevant under Sikkelee’s theory of liability, Lycoming’s defense on the basis that
it did not manufacture the carburetor fails.
The Court rejects Lycoming’s second arguments because Sikkelee adduces
enough evidence to create a genuine issue of material fact as to whether Lycoming
determined that a defect in the MA-4SPA created safety risks. It is possible that
Lycoming never made such a determination, in which case its reporting
responsibility was never triggered. But viewing the facts in Sikkelee’s favor, it is
also possible that Lycoming made the determination, but hid the relevant
information from the FAA.
The Court rejects Lycoming’s third argument for similar reasons. Sikkelee
has adduced enough evidence to allow the jury to compare the “failure,
malfunction, or defect” reports of others to the reports that Lycoming allegedly
should have made and decide whether Lycoming’s reporting duty was rendered
unnecessary under § 21.3(d).
Finally, Lycoming is correct that Sikkelee’s claim based on § 21.3 is a
difficult one because Sikkelee must prove not only that the allegedly defective
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replacement carburetor caused David’s crash, but also that the FAA would have
responded to Lycoming’s § 21.3 reports – had Lycoming not breached its duty to
make them – by ordering changes to the carburetor’s design or otherwise taking
action that would have prevented David’s accident. In other words, Sikkelee must
prove that the carburetor’s defective design caused the crash and that the
carburetor’s design was defective on the date of David’s accident because
Lycoming failed to make § 21.3 reports to the FAA. Proving the second element
requires establishing that the FAA would have responded meaningfully to the
reports.
The circumstances are similar to those in Stanton v. Astra Pharm. Prod., Inc.,
718 F.2d 553 (3d Cir. 1983), which involved a claim against the manufacturer of
an anesthetic for negligence that caused the plaintiff severe injury. The alleged
negligence was the manufacturer’s failure to submit certain adverse-reaction
reports to the Food and Drug Administration. On proving causation, Judge Becker
wrote that the manufacturer’s negligence “in failing to file the reports is not in
itself sufficient to sustain the finding that [the manufacturer] was liable. The
negligence must also have been a proximate cause of the [plaintiff’s] injury.”
Stanton, 718 F.2d at 565. The plaintiff relied on four experts “to establish
causation by introducing evidence tending to show that the information withheld
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from the FDA was of great importance and that the agency could not properly
perform its regulatory and supervisory roles without access to the unreported data,
and that the FDA would have taken action had it been aware of [the anesthetic’s]
propensity to cause adverse reactions despite low dosage.” Id. at 568. Calling the
issue “an extremely close one,” Judge Becker held that the such evidence was
sufficient to support the jury’s verdict in the plaintiff’s favor. Id. at 568-69.
In the case at bar, Sikkelee’s evidence is similar to that of the plaintiff in
Stanton. For example, one of Sikkelee’s experts opines that, “As a former FAA
certification engineer, this reportable failure, malfunction, or defect information
associated with the Lycoming O-320 series engines and the Model MA-4SPA
carburetor, is something that I would want to have and use to determine if an
Airworthiness Directive should be issued to correct the un-airworthy carburetor . . .
.” (Pl. Ex., ECF No. 234-5 at 24). Since Sikkelee may be able to make a case for
causation on par with the plaintiff in Stanton, summary judgment should be denied
as to her claims based on Lycoming’s violation of 14 C.F.R. § 21.3.
VI.
Conclusion
The watchword in Abdullah was Congressional intent. Yet having
endeavored to reconcile Abdullah with the federal regulatory scheme that governs
aviation design and manufacturing, this Court – either by way of its own error or
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that of the precedents it has followed – has reached holdings that it imagines have
little to do with Congressional intent. Fortunately, whether this Court has been
pushed to pier’s end by precedent or has stumbled to the edge itself, the Circuit
Court has the authority to pull it back to safety. See 28 U.S.C. § 1291.
For the foregoing reasons, Lycoming’s motion for summary judgment is
granted in part and denied in part.
BY THE COURT:
s/Matthew W. Brann
Matthew W. Brann
United States District Judge
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