Opinion
MDL Docket No 04-1606 VRW.
March 11, 2005
ORDER
There are currently ten cases (one of which has been stayed) pending in MDL 04-1606 that do not involve international flights or an interpretation of the Warsaw Convention ("non-Warsaw cases"). Consequently, all claims brought against the airline defendants in these cases are premised on state tort law. Currently before the court is the airline defendants' joint motion to dismiss all claims against them based upon federal preemption. Doc #12. Oral arguments were heard on this motion on January 13, 2005. After careful consideration of the parties' arguments and memoranda and upon review of the applicable law, the court GRANTS airline defendants' motion.
Moreover, should plaintiffs wish to appeal this decision, the court expressly determines that there is no just reason to delay such an appeal. Accordingly, pursuant to FRCP 54(b), the court directs the clerk to enter FINAL JUDGMENT in favor of airline defendants on all of plaintiffs' claims.
I
All plaintiffs in the non-Warsaw cases are similarly situated. All took either trans-continental or mid-continental flights within the United States; none of the flights at issue involved international travel. Moreover, all plaintiffs, subsequent to their domestic flights, developed deep vein thrombosis (DVT), a medical condition that occurs when a blood clot (thrombus) forms in a deep vein, usually in the leg. DVT can cause serious complications if the thrombus breaks off and lodges in the brain, lungs or heart, causing severe damage to that organ. Seehttp://www.nlm.nih.gov/medlineplus/ency/article/00156.htm.
Each non-Warsaw plaintiff makes the following three allegations: (1) seating configurations on airline defendants' aircraft were dangerous and defective so as to create a risk of developing DVT through prolonged and cramped seating, (2) seats on airline defendants' aircraft were defectively designed so as to create the same risk of developing DVT and (3) airline defendants failed to warn plaintiffs of the DVT risk and the steps that could have been taken to mitigate this risk, namely frequent ambulation during flight. Based upon these three general allegations, each non-Warsaw plaintiff brings the following state tort claims: (1) negligence, (2) breach of the duty of a common carrier, (3) products liability and (4) breach of warranty. Additionally, five plaintiffs assert a state tort claim for loss of consortium. Finally, all plaintiffs pray for punitive as well as compensatory damages. Defendant airlines move to dismiss all state law tort claims brought against them as being preempted by federal law.
II
"A fundamental principle of the Constitution is that Congress has the power to preempt state law." Crosby v. Nat'l Foreign Trade Council, 530 US 363, 372 (2000) (citing US Const, Art VI, cl 2). The Court has cautioned, however, that "despite the variety of these opportunities for federal preeminence, we have never assumed lightly that Congress has derogated state regulation, but instead have addressed claims of preemption with the starting presumption that Congress does not intend to supplant state law." New York State Conference of Blue Cross Blue Shield Plans v. Travelers Insurance Co, 514 US 645, 654 (1995). Accordingly, "the purpose of Congress is the ultimate touchstone" of any preemption analysis. Cipollone v. Liggett Group, Inc, 505 US 504, 516 (1992) (citation omitted).
The Court has recognized three methods by which Congress can exercise its preemptive power. First, Congress can preempt state law by enacting an "express provision for preemption" in any congressional Act (express preemption). Crosby, 530 US at 372. Next, Congress can impliedly preempt state law if a "federal law so thoroughly occupies a legislative field as to make reasonable the inference that Congress left no room for states to supplement it" (field preemption). Cipollone, 505 US at 516 (internal quotation marks and citations omitted). Accordingly, implied field preemption will be found if the federal regulation of a field is pervasive, or if, "under the circumstances of [a] particular case, [the challenged state law] stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress" in enacting a federal law. Crosby, 530 US at 373 (alterations in original) (quotations and citation omitted). Finally, even if Congress has not intended to occupy a given field, "state law is naturally preempted to the extent of any conflict with a federal statute" (conflict preemption). Id at 372 (citing Hines v. Davidowitz, 312 US 52, 66-67 (1941)). Conflict preemption may be found if it is impossible for a private party to comply with both state and federal law. Id (citing Florida Lime Avocado Growers, Inc v. Paul, 373 US 132, 142-43 (1963)).
III The Witty Decision
On April 12, 2004, after all of the non-Warsaw cases had been filed in this court, the United States Court of Appeals for the Fifth Circuit rendered its decision in Witty v. Delta Air Lines, Inc, 366 F3d 380 (5th Cir 2004). In Witty, plaintiff made a midcontinental flight within the United States on Delta Air Lines (Delta) and subsequently developed DVT. Id at 381. Plaintiff brought suit against Delta alleging that: (1) the seating configuration of Delta's aircraft was defective because the configuration did not "provide adequate leg room" to prevent DVT and (2) Delta was negligent in failing to warn passengers of the risks of DVT, namely that "there is a high risk of developing [DVT] in pressurized cabins that exceed a certain length of time." Id at 382. The district court denied Delta's motion to dismiss, holding that plaintiff's claims were not preempted by federal law. Id. A panel of the Fifth Circuit, reviewing de novo, unanimously reversed.
A
First, the panel held that the plaintiff's defective seating configuration claim was preempted by the Airline Deregulation Act of 1978 (ADA) which expressly preempts all state laws "having the force and effect of law related to a price, route, or service of an air carrier that may provide air transportation under this subpart." 49 USC § 41719(b)(1). The panel stated that the ADA "not only preempts direct regulation of [airline] prices by states, but also preempts indirect regulation relating to prices that have `the forbidden significant effect' on such prices." Witty, 366 F3d at 383 (emphasis added) (quotingMorales v. Trans World Airlines, Inc, 504 US 374, 385, 388 (1992)). The panel reasoned that exposing Delta to monetary liability for providing inadequate leg room would necessarily require Delta to reconfigure its seating by way of decreasing the number of seats on the aircraft (fewer seats means more leg room). Id at 383. Requiring Delta to decrease the number of seats available on the aircraft would in turn cause Delta to increase the prices charged for the remaining seats in order to maintain profit levels. Id. Thus, the "effect" of the state tort law would be an increase in Delta's pricing.
Accordingly, plaintiff's claim for defective seating configuration constituted indirect state regulation of Delta that would, according to the Witty panel, "inexorably relate to prices charged by [Delta]," and thus the claim was expressly preempted by the ADA. Id at 383.
B
As for the failure to warn claim, the Fifth Circuit held the claim was subject to implied field preemption by the Federal Aviation Act of 1958 (FAA), 49 USC § 44701, which affirmatively directs the Administrator of the Federal Aviation Administration to promulgate air safety standards and regulations. Witty, 366 F3d at 384. The panel stated that the "Federal Aviation Administration has issued a broad array of safety-related regulations codified in Title 14 of the Code of Federal Regulations," ranging from aircraft maintenance and inspections to the maximum number of hours employees of air carriers may work. Id. Specifically, the panel focused on the large "number of federal regulations governing the warnings and instructions whichmust be given to airline passengers." Id (emphasis added).
In light of these mandatory and extensive warning requirements, the Fifth Circuit held that Congress intended to occupy the entire field of air safety, and thus "federal regulatory requirements for passenger safety warnings and instructions are exclusive and preempt all state standards and requirements." Id at 385. According to the Fifth Circuit, "Congress enacted a pervasive regulatory scheme covering air safety concerns [i e, the FAA] that includes regulation of the warnings and instructions that must be given airline passengers" and any claim for failure to warn "must be based on a violation of federally mandated warnings." Id (emphasis added). Because the federally mandated warnings do not require air carriers to warn passengers about the risk of DVT, or methods of preventing the condition, Delta could not be held liable for failing to give such warnings; any state law to the contrary is impliedly preempted by the FAA. Id.
The court notes in passing that the Witty plaintiff did not petition the Fifth Circuit to rehear the case en banc, nor did he petition the Supreme Court for certiorari.
C
The parallelism between Witty and the non-Warsaw cases was not lost on airline defendants. In their joint case management statement dated October 6, 2004, Doc #12, airline defendants urged the court to adopt or reject the Fifth Circuit's reasoning in Witty, and thus "rule on this potentially dispositive issue at the outset" of this MDL litigation. Id at 6. The court construed defendants' case management statement as a motion to dismiss all non-Warsaw cases under the preemption reasoning announced inWitty. The court ordered plaintiffs to submit a single opposition memorandum demonstrating that "the court should not adopt the reasoning of Witty and thus dismiss all non-Warsaw cases as preempted by federal law." Doc #27 at 2-3. Plaintiffs submitted their memorandum on November 16, 2004, Doc #39. The airline defendants filed their response on November 30, 2004. Doc #51.
IV Defective Seating Configuration
Congress expressly evidenced an intent to preempt state law in § 41713(b)(1) of the ADA. The court's inquiry into the scope of such preemption "must in the first instance focus on the plain wording of the clause, which necessarily contains the best evidence of Congress' preemptive intent." CSX Transportation, Inc v. Easterwood, 507 US 658, 664 (1993).
Plaintiffs offer two arguments why their defective seating configuration claims are not expressly preempted by § 41713(b)(1). First, plaintiffs argue that the ADA has a narrow preemption provision that "does not preempt common-law personal injury claims." Doc #39 at 8. Second, plaintiffs argue that even if some common-law personal injury claims are within the preemptive scope of the ADA, their specific claims based upon defective seating configuration fall outside this scope because they do not "relate to a price" of an air carrier. Id at 11-12. Both arguments fail to persuade.
A
Plaintiffs argue that the entire area of common-law personal injury claims was not intended to be, and thus is not, preempted by the ADA (an argument not made by the Witty plaintiff). Id at 4-10. In support of this argument, plaintiffs focus mainly on case law from the Supreme Court and Ninth Circuit. Id at 5-8.
Beginning with the high Court, plaintiffs contend that although the "Supreme Court has not specifically addressed whether personal injury claims are preempted [by the ADA]," Justice O'Connor has "suggest[ed] that personal injury claims are not preempted" by the ADA. Id at 5 (citing America Airlines, Inc v. Wolens, 513 US 219, 238 (1995) (O'Connor, J, concurring in part and dissenting in part)).
In Wolens, petitioner American Airlines (American) retroactively modified its frequent flyer program, AAdvantage, so as to impose capacity controls and blackout dates. Id at 224-25. Respondents brought suit against American, claiming the modifications violated the Illinois Consumer Fraud and Deceptive Business Practices Act (DBPA), and also constituted breach of contract. Id at 225. The Court, per Justice Ginsburg, held that respondents' DBPA claims were preempted by the ADA because such claims related not only to the "rates" charged by American, but also to "services" offered by American. Id at 226. The Court, however, allowed respondents' state law claims for breach of contract to proceed, finding that terms and conditions offered by an airline and accepted by passengers are private obligations and "thus do not amount to a State's enactment or enforcement [of] any law * * * within the meaning of [the ADA]." Id at 228 (citation omitted) (first alteration in original). The court carefully analyzed each claim individually to determine if it was within the preemptive scope of the ADA and refused to announce any broad rules concerning which state law claims are preempted. Id at 234-35 (refusing to announce a broad ADA-preemption rule because "in our system of adjudication, principles seldom can be settled on the basis of one or two cases, but require a closer working out") (citation omitted).
Justice O'Connor, joined by Justice Thomas, concurred in part and dissented in part; she would have held "that none of respondents' actions [could] proceed" in light of the ADA. Id at 238. While Justice O'Connor appeared to be endorsing a broad interpretation of the ADA's express preemption clause, she clarified that:
My view * * * does not mean that personal injury claims against airlines are always preempted. Many cases decided [by lower courts] have allowed personal injury claims to proceed * * *. In those cases, courts have found the particular tort claims at issue not to "relate" to airlines services * * *. Id at 242 (emphasis added).
Plaintiffs seize upon these words and assert that Justice O'Connor was "suggesting that personal injury claims [as a whole] are not preempted" by the ADA. Doc #39 at 5. Plaintiffs' reading of Justice O'Connor's opinion misses the mark for two reasons. First, Justice O'Connor states that her view does not mean that personal injury claims are always preempted. Implicit in this statement is her view that some personal injury claims are preempted by the ADA while others are not. More to the point, Justice O'Connor, by urging a focus on "the particular tort claims at issue," endorses a case-by-case approach to analyzing whether personal injury claims are preempted by the ADA, not a per se exclusion or inclusion of such claims from the preemptive scope of the ADA. Accordingly, Justice O'Connor's opinion in no way supports plaintiffs' proposition that all personal injury claims are exempt from ADA preemption.
It is worth noting that Justice Stevens, also concurring in part and dissenting in part in Wolens, explicitly endorsed plaintiffs' broad non-preemption proposition:
In my opinion, private tort actions based on common-law negligence or fraud * * * are not preempted. * * *. Presumably, if an airline were negligent in a way that somehow affected its rates * * * and the victim of the negligence were to sue in state court, the majority would not hold all common-law negligence rules to be preempted by the ADA. Id at 235-36 (Stevens, J, concurring in part and dissenting in part).
But no other Justice joined in Justice Stevens's concurrence.
Accordingly, the Court steered very clear from adopting plaintiffs' sweeping proposition that all personal injury claims are immune from ADA preemption. In fact, the Wolens majority and Justice O'Connor both seem to endorse a case-by-case approach to analyzing whether state tort claims are preempted by the ADA.
Plaintiffs also argue that Ninth Circuit precedent, namelyCharas v. Trans World Airlines, Inc, 160 F3d 1259 (9th Cir 1998) (en banc), stands for the proposition that all personal injury claims are per se excluded from ADA preemption. Doc #39 at 6. It appears plaintiffs read Charas with the same rosy lenses with which they read Justice O'Connor's opinion in Wolens. Charas concerned several consolidated cases, each of which involved a negligence suit against an airline for injuries arising out of any of a myriad of occurrences, including: (1) a run-away beverage cart crashing into a passenger's shoulder, (2) luggage falling from overhead compartments and landing on a passenger's head, (3) abandoned luggage blocking the aisle and causing a passenger to fall and (4) a passenger with a rare bone condition falling off an exit stairway because no employees would assist her. Id at 1261-62. The district courts in all of these cases, save Judge Jensen from this court, held that personal injury claims are preempted by the ADA because the injury claims related to a "service" of the airline (e g, pushing beverage carts, safe handling and storage of luggage or assistance to passengers in need). Id. The Ninth Circuit reversed.
Much of Charas is dedicated to defining what actions and inactions constitute a "service" within the meaning of the ADA and thus is not relevant to the current motion. In defining what constitutes a "service," however, the Ninth Circuit explored the congressional intent underlying the ADA's preemption provision. Id at 1264-66. The Ninth Circuit stated that the "clear and manifest purpose in enacting the ADA was to achieve * * * economic deregulation of the airline industry." Id at 1265. In other words, the ADA was meant to prevent the states from regulating the economic aspects of the airline industry, such as price, routes or services. Consequently, the Ninth Circuit held that the ADA was not enacted to "displace state tort law in actions that do not affect deregulation in more than a `peripheral manner.'" Id at 1265 (quoting Morales v. Trans World Airlines, Inc, 504 US 374, 390 (1992)).
Plaintiffs seize upon this last sentence for the proposition that the Ninth Circuit has held, en banc no less, that all state law tort claims are immune from ADA preemption. This is simply incorrect. The language of Charas makes clear that the Ninth Circuit, like the Wolens majority and Justice O'Connor, endorses a case-by-case analysis of a state tort action in order to determine whether such action does or does not "affect deregulation in more than a peripheral manner." In essence, the Court and the Ninth Circuit view the ADA's "related to a price, route or service" language as a continuum, with individual state law claims, including personal injury claims, falling at various points. The continuum includes direct regulations (clearly forbidden) on one end and state law actions which are wholly unrelated to any type of economic regulation at the other. Where a state law or regulation falls on the continuum is determined by examining not only the law's "force," but also its "effect." See 49 USC § 41713(b)(1).
Accordingly, a state law that, on its face, has nothing to do with economic regulation of airlines may still be preempted by the ADA if the law, in any given action, has the "effect" of economically regulating an airline. Such a detailed inquiry does not lend itself to per se rules of inclusion or exclusion; both the Supreme Court and the Ninth Circuit are in agreement on this point. Consequently, plaintiffs' broad assertion that all personal injury claims are immune from ADA preemption is unsupported by any legal precedent and thus is ultimately unpersuasive.
B
Next, plaintiffs argue that even if personal injury claims are within the scope of the ADA's preemption clause, their individual personal injury claims based upon defective seating configuration are not preempted because such claims are only "tenuously" related to a price charged by defendant airlines. Doc #39 at 12. This proposition places plaintiffs in direct opposition to the Fifth Circuit's opinion in Witty, which held that defective seating configuration claims were preempted by the ADA.
As described in detail above, the Fifth Circuit held theWitty plaintiff's state tort claim based upon defective seating configuration (i e, inadequate leg room) was preempted because such a claim constituted indirect state regulation of airlines as it would have a significant economic effect on prices.Witty, 366 F3d at 383.
Accordingly, to resolve this conflict, the court must first determine the legal standard for analyzing whether a state law claim "relates to" a price and then apply this standard to determine whether plaintiffs' state law claims for defective seating configuration are preempted.
1
Plaintiffs assert that Witty's "significant economic effect" legal standard is flawed because it is not the standard mandated by the language of the ADA or any legal precedent. Doc #39 at 12 ("The ADA does not nor [sic] has the Ninth Circuit based preemption [analysis] on the state laws [sic] effects on rates, routes, or services") (emphasis in original). Instead, plaintiffs assert that the correct standard is one of facial "relatedness," in that a state law or regulation would, on its face, have to "require a [direct] change in the airline's [price]" to be preempted by the ADA. Id (emphasis in original). In other words, plaintiffs argue that the ADA is wholly unconcerned about a state law's "effect" on airline prices. Id at 14 ("The ADA was not established to prevent economically significant effects on prices * * *."). This assertion is simply wrong.
The language of the ADA itself explicitly directs courts to examine not only the "force" of a state law on airline price (i e, direct regulation), but also the "effect" a state law has on price (i e, indirect regulation):
[A] State * * * may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route or service of an air carrier * * *.49 USC § 41713(b)(1) (emphasis added).
Accordingly, the Fifth Circuit was correct in holding that the ADA "not only preempts direct regulation of [airline] prices by states, but also preempts indirect regulation relating to prices that have the forbidden significant effect on such prices."Witty, 366 F3d at 383. Plaintiffs' assertion that the language of the ADA evidences Congress' intent to jettison any analysis of a state law's "effects" is utterly without merit.
Moreover, plaintiffs speak of the "significant economic effect" analysis as if such an analysis is wholly foreign to ADA preemption and was invented by the Witty panel. This is plainly incorrect. In Morales, relied on in Witty, the Court, per Justice Scalia, held that state law restrictions on airline fare advertising were preempted by the ADA not only because such restrictions "explicitly reference[d] fares," but also because they "have the forbidden significant effect upon fares."Morales, 504 US at 388 (emphasis added). It is clear that in analyzing whether a state law "relates to a price," the Supreme Court directs lower courts to examine the law's explicit language regarding prices (direct regulation) as well as its significant effect on prices (indirect regulation).
Accordingly, plaintiffs' argument that the "significant economic effect" legal standard is inappropriate in determining whether their state law claims are preempted is unpersuasive.
2
Finally, plaintiffs argue that even if the "significant economic effect" analysis is appropriate in analyzing ADA preemption, their personal injury claims are not preempted because the claims do not have a "significant" economic effect on airline prices, but rather have only a "remote" economic effect. Doc #39 at 12.
The Fifth Circuit held that the Witty plaintiff's personal injury claim based upon inadequate leg room would have a significant economic effect on Delta's prices because to provide more leg room, Delta would have to change its seating configuration and thus "necessarily reduce the number of seats on the aircraft." Witty, 366 F3d at 383. Because a decrease in seating would equate to fewer ticketed passengers on board, Delta would have to raise its fares in order to maintain current profit levels. Id. Accordingly, the plaintiff's personal injury claims had the forbidden significant effect of airline pricing and were thus preempted by the ADA.
Plaintiffs do not dispute the Fifth Circuit's logic, and they concede that requiring an airline to change its seating configuration would have a forbidden significant economic effect on the airline's pricing. Doc #39 at 13. This court, per Judge Jenkins, has implied that any state law claim requiring an airline to reconfigure its seating configuration would necessarily be preempted by the ADA. See Tall Club of Silicon Valley v. American Airlines, 2000 US Dist LEXIS 11302, *16 (ND Cal 2000) (holding that because "[p]laintiff is not requesting a reconfiguration of airline seating," the ADA did not preempt his state law claim and thus remand to state court was appropriate).
Instead, plaintiffs attempt to distinguish their claims from the claims in Witty based upon the facts. Id at 10 (stating that "Witty is distinguishable based upon the allegations" present in these two suits).
Plaintiffs assert that, unlike the plaintiff in Witty, their personal injury claims based upon defective seating configuration "do not imply that more leg room * * *, or a change in the configuration of the seats would cure the problem." Id at 11. Consequently, their personal injury claims do not, according to plaintiffs, require airline defendants to redesign or reconfigure their seating. Rather, "[t]he airlines remain free under state law to do nothing about the seats and seating condition * * * but they may be required to compensate passengers who suffer personal injury as a result of the cabin environment." Id at 13 (emphasis added). In other words, plaintiffs assert that perpetual and costly monetary liability under state tort law does not amount to any form of state regulation of airline prices (i e, the airlines would more likely choose simply to pay all current and future DVT claims than redesign and reconfigure their aircraft seating to avoid such liability).
This argument, which ignores the economic reality of state tort law as a compensatory and preventative area of law, has been squarely rejected by the Supreme Court. Cipollone, 505 US 504. In Cipollone, the Court examined the preemptive scope of the Public Health Cigarette Smoking Act of 1969 (CSA), 15 USC §§ 1331- 1340. Id at 515. The CSA requires a warning label to be placed on all cigarette packages sold in the United States and bans cigarette advertising on any electronic medium. Id at 508. Moreover, the CSA even prescribes the content of the warning label, requiring each label to contain a statement that cigarette smoking "is dangerous." Id at 515. The CSA also contains an express preemption provision, § 1334(b), which reads:
(b)State regulations. No requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this Act.
Petitioner was the son of a woman who had died of lung cancer after smoking for over forty years. Id at 508. Acting individually and on behalf of his mother's estate, petitioner brought state law claims for breach of warranty, failure to warn, fraudulent misrepresentation and conspiracy against the cigarette manufacturer. Id. Writing for the Court, Justice Stevens, for reasons irrelevant to the current motion, held that only some of the state law claims were preempted by the CSA; others were allowed to proceed.
Cipollone's relevance lies in one of the petitioner's arguments against preemption: He contended that the CSA was not intended to preempt "common-law" actions. Id at 521. Petitioner asserted that "common-law damages actions do not impose `requirements or prohibition' and that Congress intended only to trump `state statutes, injunctions or executive pronouncements.'" Id (citation omitted). Justice Stevens, joined by the Chief Justice and Justices White and O'Connor; and Justices Scalia and Thomas disagreed. Id (opinion of Stevens, J, joined by Rehnquist, CJ, and White and O'Connor, JJ) (stating that such an analysis was "at odds with * * * the general understanding of common-law damages actions"); id at 548 (opinion of Scalia, J, joined by Thomas, J) (agreeing with the plurality that "the general tort-law duties petitioner invokes * * * can, as a general matter, impose `requirements and prohibitions' * * *"). "[State] regulation can be as effectively exerted through an award of damages as through some form of preventative relief. The obligation to pay compensation can be, indeed is designed to be, a potent method of governing conduct and controlling policy." Id at 521 (opinion of Stevens, J) (quoting San Diego Building Trades Council v. Garmon, 359 US 236, 247 (1959)). Moreover, "common-law damages actions * * * are premised on the existence of a legal duty, and it is difficult to say that such actions do not impose `requirements or prohibitions.'" Id at 522 (emphasis added).
Hence, the reasoning underlying plaintiffs' argument that their personal injury claims will not "require" airline defendants to redesign and reconfigure their seating has been squarely rejected by the Supreme Court. Plaintiffs concede that claims requiring an airline to reconfigure its seating have the "forbidden significant effect" described in Morales and thus are preempted by the ADA. Accordingly, plaintiffs' personal injury claims based upon defective seating configuration are preempted by the ADA and airline defendants' joint motion to dismiss these claims is GRANTED.
V Failure to Warn Claims
The ADA contains an express preemption provision. Accordingly, Congress clearly intended the ADA to preempt some sphere of state law and the courts have only had to struggle with interpreting the scope of the ADA's preemptive effect. This is not the case with the FAA.As discussed above, the FAA vests in the Administrator of the Federal Aviation Administration the broad power to "promote safe flight of civil aircraft in air commerce by prescribing" federal regulations governing aviation safety. 49 USC § 44701(a). Moreover, the FAA directs the Administrator to "carry out this chapter in a way that best tends to reduce or eliminate the possibility or recurrence of accidents in air transportation." 49 USC § 44701(c). "Regulations promulgated under the FAA are the central source of federal statutory control" over aviation safety. Curtin v. Port Authority of New York and New Jersey, 183 F Supp 2d 664, 668 (SD NY 2002). These regulations, codified at Title 14 of the Code of Federal Regulations, prescribe standards of care for the aviation industry.
Because the FAA contains no express preemptive provision, courts have been left to determine (1) whether, based upon Congressional intent, field and/or conflict preemption may be implied to the FAA and the regulations promulgated by the Administrator, and if so, (2) the scope of such implied preemption. Moreover, the Supreme Court's adage that "the purpose of Congress [in enacting a federal Act] is the ultimate touchstone" of any preemption analysis takes on added force in the context of implied, rather than express preemption. Cipollone, 505 US at 516.
In Witty, the Fifth Circuit stated that whether FAA regulations preempted plaintiff's failure to warn claim "present[ed] a closer question" than whether the ADA preempted his inadequate leg room claim. 366 F3d at 383. Nevertheless, after careful examination, the panel held that personal injury claims based upon an airline's failure to warn of DVT and possible preventative measures were impliedly preempted by FAA regulation under both field and conflict preemption doctrines. Id.
While the court agrees with Witty's conclusion, it does not believe that the FAA preemption issue presents a "closer question" than did the ADA issue. In fact, the court believes the opposite is true. The Witty court's viewpoint may stem from the lack of Fifth Circuit precedent on Congress' purpose in enacting the FAA. Id at 384 (stating that the Fifth Circuit had never addressed the issue of "the possible preemptive effect of [FAA] regulations * * *"). This is not the case in the Ninth Circuit.
As early as 1944, Justice Jackson observed the distinct relationship between aviation and the federal government: "Planes do not wander about in the sky like vagrant clouds. They move only by federal permission, subject to federal inspection, in the hands of federally certified personnel and under an intricate system of federal commands." Northwest Airlines v. Minnesota, 322 US 292, 303 (1944) (Jackson, J, concurring). More than thirty-five years ago, the Ninth Circuit analyzed Congress' intent in enacting the FAA. United States v. Christensen, 419 F2d 1401 (9th Cir 1969). After canvassing the FAA's legislative history, the Ninth Circuit concluded that "the whole tenor of the Act and its principal purpose is to create and enforce one unified system of flight rules." Id at 1404 (emphasis added). Moreover, "`[t]he [FAA] was passed by Congress for the purpose of centralizing in a single authority — indeed, in one administrator — the power to frame rules for the safe and efficient use of the nation's airspace.'" Id (quoting Air Line Pilots Association Int'l v. Quesada, 276 F2d 892, 894 (2d Cir 1960)).
Nine years later, the Ninth Circuit specifically addressed the preemptive effect of FAA safety regulations. World Airways, Inc v. Int'l Brotherhood of Teamsters, Airline Division, 578 F2d 800 (9th Cir 1978). In World Airways, a pilot was permanently demoted from Pilot-in-Command to co-pilot based upon what the airline considered a pattern of "poor judgment." Id at 801. The pilot filed a grievance through his union which was submitted to arbitration. Id at 802. The arbitrator rendered an opinion which found that the pilot must "be retrained and then given an opportunity to requalify as a Pilot-in-Command." Id. The airline filed suit in federal court, arguing that FAA regulation, namely 14 CFR § 121.413(4)(ii), preempted the arbitrator from making such a determination. Section 121.413(4)(ii) states that it is the duty of the [air] carrier alone to determine the competency of its pilots in the interests of public safety. The Ninth Circuit agreed that the FAA regulation preempted any law or decision which gave arbitrators the power to make pilot-competency determinations.
The Ninth Circuit began its analysis by explicitly stating that since Congress enacted the FAA, "[f]ederal law has pre-empted the area of aviation." Id at 803. Moreover, "Congress ha[s] directed the Administrator of the [FAA] to give full consideration to the duty resting upon air carriers to perform their services with the highest degree of safety in the public interest." Id. In the end, because FAA regulation "clearly places the responsibility upon the airline to determine whether or not a pilot possesses the judgment to serve as a Pilot-in-Command," the arbitrator's award to the contrary was stricken. Id at 804. See also Skysign Int'l, Inc v. City and County of Honolulu, 276 F3d 1109, 1116 (9th Cir 2002) (stating that although Congress itself has made no affirmative decision to "completely occupy the field" of aviation safety, it "has left open the door for the FAA to do so through the use of its authority to develop regulations for the use of the navigable airspace" (citation omitted)).
Based upon the holdings in Christensen and World Airways, it is beyond question that the Ninth Circuit has held that the FAA and its corresponding regulations preempt a large portion, if not the entire field, of aviation safety. Moreover, the Ninth Circuit is far from alone on this proposition. Accord Abdullah v. American Airlines, Inc, 181 F3d 363, 367 (3d Cir 1999) (the "FAA and the relevant federal regulations establish complete and thorough safety standards * * * for air transportation that are not subject to supplementation by, or variation among, jurisdictions"); British Airways Board v. Port Authority of New York, 558 F2d 75, 84 (2d Cir 1977) ("control of flights through navigable airspace" is an area which is "totally preempted" by the FAA); Kohr v. Allegheny Airlines, Inc, 504 F2d 400, 403-04 (7th Cir 1974) (Congress recognized the "predominant, indeed almost exclusive, interest of the federal government in regulating the affairs of the nation's airways," and the FAA "expressed [this] view that the control of aviation should rest exclusively in the hands of the federal government"); French v. Pan Am Express, Inc, 869 F2d 1, 4 (1st Cir 1989) (holding "without serious question" that "preemption is implied by the comprehensive legal scheme" of the FAA); Witty, 366 F3d at 385 (by enacting the FAA, "Congress enacted a pervasive regulatory scheme covering air safety concerns").
Despite the uniformity among the circuits — and, dispositively for this court, in the Ninth Circuit — plaintiffs devote four pages of their memorandum to contending that Congress did not intend the FAA to have any preemptive effect. See doc #39 at 14-15 (arguing that because the FAA creates only minimum standards of airline safety, "preemption [cannot] be found"); id at 16 (arguing that the FAA savings clause "demonstrates that the [FAA] does not preempt state common law"); id at 17 (arguing that because Congress requires air carriers to carry insurance, the FAA should have no preemptive effect over state law remedies). Plaintiffs' arguments that the FAA has no preemptive effect, however, are unavailing; the Ninth Circuit has decided otherwise. Plaintiffs may wish to argue that the FAA has no preemptive effect and that Christensen and World Airways were wrongly decided, but they should do so to the Ninth Circuit, not this court, for it is the Ninth Circuit's prerogative alone to overrule one of its precedents. Cf State Oil Co v. Khan, 522 US 3, 20 (1997).
As Ninth Circuit precedent indubitably gives implied field preemptive effect to the FAA, the question becomes whether plaintiffs' failure to warn claims fall within the scope of the FAA's implied preemption. The answer is yes. As stated above, "the whole tenor of the [FAA] and its principal purpose is to create and enforce one unified system of flight rules."Christensen, 419 F2d at 1404. And to this end, the FAA Administrator has enacted a large number of federal regulations governing the warnings and instructions that must be given to airline passengers. See 14 CFR § 121.571(a) (requiring that "all passengers [be] orally briefed by the appropriate crewmembers before each takeoff" regarding smoking, emergency exit locations, use of safety belts, conditions mandating that seat belts be fastened and locations and use of emergency flotation devices); 14 CFR § 121.571(b) (requiring every airline to carry "printed cards supplementing the oral briefing, including diagrams of, and methods of operating, emergency exits and equipment); 14 CFR § 25.791 (governing the warnings that must be given to passengers via "signs and placards"); 14 CFR § 121.585(d) (requiring oral commands to be given by crewmembers to each passenger occupying a seat next to an emergency exit).
Moreover, state-law suits based upon a failure to warn of DVT would most certainly lead to non-uniformity (anathema to the FAA), for each time a state jury sustains a failure to warn challenge, airline defendants would be forced to amend their preflight warnings to avoid future liability. Moreover, such state law verdicts could be inconsistent amongst themselves. For example, a jury in Arkansas might find that an airline's oral warning of DVT risks insufficient because a reasonably prudent airline would have displayed a video warning demonstrating potential preventative measures is required. A jury in California, however, could find that an oral warning before take-off is sufficient while a jury in Texas could find that an oral warning of DVT prior to take-off is insufficient unless repeated at least three hours into the flight. Juries in the other forty-seven states could reach similar or drastically different results when presented with the same question.
The sufficiency of an airline's warning of DVT would hinge on the citizenship of each passenger on each different flight, thus exposing an airline to dozens of standards of care to warn on any given flight that contains passengers from all 50 states. Such mass confusion and non-uniformity are exactly what Congress wanted to prevent when it enacted the FAA and placed the power to prescribe pre-flight warnings regulations to the FAA Administrator. Accordingly, in order to achieve the purpose of the FAA, a personal injury claim based upon an airline's failure to warn must be premised on the airline's failure to give afederally mandated warning; state laws requiring supplemental warnings are preempted. It is undisputed that FAA regulations do not require airlines to warn passengers about the risk of DVT or methods for preventing this condition. Thus, airline defendants cannot be liable failing to warn non-Warsaw plaintiffs of this alleged risk.
Finally, Rivera v. Philip Morris, Inc, 395 F3d 1142 (9th Cir 2005), offers no support for plaintiffs' assertion that federal law does not preempt their failure to warn claims. In Rivera, a husband brought suit on behalf of his wife's estate against a cigarette manufacturer after the wife died of lung cancer — she had smoked Marlboro cigarettes for over 30 years. Id at 1145. Specifically, the husband asserted a state law claim for products liability premised on the theory that the cigarette manufacturer had failed to warn his wife of the health risks associated with smoking. Id at 1146. Relying upon Cipollone, the cigarette manufacturer moved to dismiss, asserting that the state law failure to warn claim was preempted by the express preemption clause contained in the CSA. See supra Part IV(B)(2) (discussing the CSA's express preemption provision). The Ninth Circuit held that the husband's failure to warn claims were not preempted by the CSA because the claims were "unrelated to `advertising or promotion.'" Id at 1148. Rather, the husband's "claim [was] based on [the cigarette manufacturer's] failure to employ non-promotional communications, such as public service announcements, to adequately warn consumers of the specific hazards of smoking." Id. Because the express preemption provision of the CSA only preempts state laws that impose requirements or prohibitions relating to the "advertising or promotion" of cigarettes, the husband's claims were not preempted. Id.
Without explanation, plaintiffs direct the court's attention toRivera, apparently asserting that it supports their position that state law claims for failure to warn of DVT are not preempted by the FAA. Doc #140. Rivera, however, is inapposite to the present motion. Rivera speaks only to federal preemption of state laws pursuant to an express preemption clause, such as the one included in the CSA. Airline defendants, however, concede that the FAA does not contain an express preemption clause. Rather, airline defendants assert that plaintiffs' failure to warn claims are impliedly preempted by the FAA under the doctrine of field preemption. Rivera in no way speaks to implied preemption principles and thus offers no guidance to the court, or support for plaintiffs, regarding the present motion.
In sum, because state law claims for failure to warn could lead to mass confusion and non-uniformity, these laws "stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress" in enacting the FAA. Accordingly, such claims are impliedly preempted under the doctrine of field preemption. Crosby, 530 US at 373.
VI Defective Seat Design
Turning to plaintiffs' final claim based upon defective seat design (as opposed to seat configuration), the court finds itself faced with an issue not addressed by the Witty panel: Are state products liability claims based upon defective aircraft seat design preempted by federal law? Implicitly conceding that defective seat design claims would not have the forbidden significant effect on airline price pursuant to the ADA andMorales, airline defendants only argue that these claims are impliedly preempted under the FAA. Doc #51 (stating that "any alleged state standards for seat design, certification or maintenance are preempted by federal law based upon the doctrine of implied field preemption").
As discussed above in reference to the failure to warn claims, it is beyond dispute that the Ninth Circuit has found implied preemptive power in the FAA and the regulations promulgated pursuant to it. Christensen, 419 F2d at 1404; World Airways, 578 F2d at 804. The question remaining for resolution is whether the plaintiffs' claims based upon defective aircraft seat design fall within the implied preemptive scope of the FAA. The answer is yes. As with pre-flight warnings and instructions, the FAA Administrator has enacted a wealth of federal regulations governing the design, maintenance, structure and position of aircraft seats. For example, 14 CFR § 23.785, titled "Seats, berths, litters, safety belts and shoulder harnesses," extensively regulates each seat design and supporting structure as it relates to maximum weight factor. The same regulations also requires that each seat and safety belt be "designed to provide the occupant protection provisions required in § 23.562." Id. Title 14 CFR § 23.562 and § 25.562 strictly regulate seat structures and the accompanying dynamic test criteria each structure must meet to provide for maximum emergency landing conditions. Finally, and perhaps dispositively, all seat designs "must be approved" by the FAA. 14 CFR § 25.785.
Moreover, as with plaintiffs' failure to warn claims, juries in different states could expose airlines to many different standards of care regarding seat design sufficiency. Again, nonuniformity is anathema to the FAA.
Accordingly, FAA regulations have left no room for states to regulate the sufficiency of aircraft seat design. Any claim for defective seat design must be premised on a violation of the federal standards enacted by the FAA Administrator and described above. Plaintiffs' claims, however, are premised entirely on state law products liability standards and thus must de dismissed under the doctrine of implied field preemption.
VII
In sum, the court GRANTS airline defendants' joint motion to dismiss all of non-Warsaw plaintiffs' claims. This order affects only the named airline defendant in each of these non-Warsaw cases. If the only defendant in an individual case is an airline, the clerk is directed to CLOSE the case and TERMINATE all motions. If, however, parties other than an airline are named as a defendant, the clerk is directed to DISMISS only the named airline defendant.
IT IS SO ORDERED.