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This is a watershed moment for aviation safety. The recent Boeing disasters clearly demonstrate that the Federal Aviation Administration (FAA) is neither an effective nor an independent check on aircraft design and safety. Indeed, as Boeing CEO Dennis Muilenberg boasted in 2017, under the current presidential administration, the FAA review process has been “streamlined” to favor manufacturers¹—a process that allowed the 737 MAX to quickly enter service, notwithstanding what we know now about its fatal flaws.

Whether the recent breaks in the otherwise long streak of commercial aviation safety are outliers or will become the norm could be decided by Avco Corp. v. Sikkelee, a case scheduled for conference at the U.S. Supreme Court this term.² In short, if the justices grant cert, they will decide whether to shield aircraft manufacturers from any tort liability for injuries and deaths caused by aircraft or aircraft components that the FAA has certified as “airworthy.”

Seeking to capitalize on the Supreme Court’s recent anti-consumer jurisprudence, a coalition of aviation manufacturers is now making the audacious argument that mere regulatory compliance precludes design defect lawsuits. In Sikkelee, a design flaw in an airplane engine caused it to lose power, and the plane crashed, killing the pilot and severely injuring his brother. The engine component part manufacturer has petitioned the Court to reverse the Third Circuit’s decision allowing the pilot’s wife to proceed with a state law-based action.³

The defendant in Sikkelee and its allies in the aviation manufacturing industry have taken the position that the entire field of aviation safety is “preempted”—that is, state law causes of action are unavailable to airplane passengers injured or killed as a result of design defects because of the FAA’s numerous regulations establishing “minimum standards” in the aviation field.

The importance of this issue to the industry is clear, and it is monumental to the safety of the flying public. In late April, aviation companies and trade groups filed seven amici briefs urging the Court to protect aviation manufacturing defendants from state law tort suits—a perversion of the purpose and language of the federal laws and regulations concerning aviation.

When Congress passed the Federal Aviation Act, it endowed the FAA with authority to regulate the aviation industry, and that law instructed the FAA to issue regulations setting “minimum standards” for aviation safety. Although the FAA has issued many such regulations regarding the design of aircraft and aircraft components, none expressly require aviation products to be free of defects as a condition of receiving an airworthiness certification.

Indeed, no federal regulations are infallible.⁴ And, as former Supreme Court Justice John Paul Stevens once observed, even “the Titanic ‘complied with British government regulations setting minimum requirements for lifeboats when it left port on its final, fateful voyage.’"⁵ The FAA has certified every airplane and helicopter flying in the United States but, like the Titanic, compliance with the certification requirement is not a determination that an aircraft is safe or free of defects, a truth made all too apparent in the Boeing 737 MAX disasters.

Over the past 60 years, the volume of air traffic has grown faster and larger than the FAA’s budget can adequately accommodate. Forced to do more with less, the agency responded by delegating much of its review process to “designated engineering representatives” (DERs) and “designated airworthiness representatives” (DARs). These engineers often are direct employees of the very companies whose products they are certifying as airworthy.

As a backstop against this conflict of interest, however, we have a robust civil justice system. State law-based products liability actions against aviation manufacturers have, for decades, exposed dangers that the FAA—or its DERs and DARs—have overlooked or undervalued, incentivizing manufacturers to design safer aircraft, provide adequate training, and market their products responsibly.

For example, several lawsuits arising out of a series of commercial aircraft disasters in the 1990s revealed dangerous defects in the rudder system of an earlier iteration of the Boeing 737 aircraft, and those suits ultimately saved countless lives by preventing future crashes. None of those suits would have been possible—and none of the design improvements made—had the law been what the petitioners in Sikkelee are now urging.

On Sept. 8, 1994, a Boeing 737-3B7 aircraft operating as USAir Flight 427 crashed on approach to Pittsburgh International Airport, killing all 132 passengers and crew. The Boeing 737-3B7 aircraft used a rudder control system with a power control unit manufactured by Parker Hannifin Corp. As Flight 427 came in for landing, the airplane suddenly banked and rolled to the left, entered an uncontrolled descent, and hit the ground. Though the airplane’s design had been FAA approved and certificated, the National Transportation Safety Board (NTSB) determined that the plane’s rudder “most likely deflected in a direction opposite to that commanded by the pilots as a result of a jam of the main rudder power control unit[.]"⁶

That USAir Flight 427 disaster was not, however, the first sign that the Boeing 737’s rudder system had serious problems. Several years earlier, United Airlines Flight 585, another Boeing 737 with the same Parker Hannifin power control unit in its rudder system, experienced a malfunction while approaching Colorado Springs Municipal Airport.⁷ As happened later with Flight 427, the pilots could not regain control of the aircraft as it rolled and pitched, and the airplane hit the ground at more than 200 miles per hour with 25 people on board.⁸

After concluding its Flight 427 investigation in 1999, the NTSB issued an urgent recommendation to the FAA that the 737’s rudder system be redesigned and upgraded.⁹ The NTSB chastised the FAA for approving the designs in the first place and recommended that the FAA’s certification processes be significantly overhauled, providing another reminder that FAA certification does not ensure a safe aircraft.¹⁰ But it took the FAA another three years to act on that criticism. In 2002 the FAA finally mandated that a new rudder system with multiple power control units be installed in every Boeing 737 aircraft by 2008—nearly two decades after the NTSB first identified the aircraft’s rudder control system as the probable cause of a fatal commercial aviation disaster.¹¹

In each of these cases, the only incentive that the defendant manufacturers had to resolve the lawsuits brought by the family members of the passengers and crew members killed by the rudder failure was the risk of tort liability that they faced for the fatal flaws in the systems they designed. Had the law at that time been what the Sikkelee defendants and amici are urging today, those families would have been precluded from any recovery and their lawsuits dismissed. By mere compliance with federal regulations, Boeing and Parker Hannifin would have been wholly protected from tort liability for the design decisions that put a dangerously defective rudder system into commercial passenger airplanes.

Following the recent Ethiopian Airlines Flight 302 tragedy, the public has learned that Boeing knew about the 737 MAX design defects before the crash yet failed to adequately warn pilots of its flaws. To redress this misconduct and to protect future air passengers and flight crews, the families of victims of Flight 302 have—for now—meaningful access to the civil justice system, which has allowed victims to hold manufacturers accountable and encourage design changes. But a corporate campaign against tort suits threatens this vital component of our safety system just when the FAA has been revealed as functionally dependent on corporate beneficence.

If the Supreme Court accepts cert and then adopts the arguments of the Sikkelee defendants, victims killed in aviation disasters resulting from design defects will have no judicial recourse, and manufacturers will have less incentive to improve their designs. Ruling that federal aviation regulations preempt state law-based suits would immunize aviation manufacturers from the financial risk of their defective designs, even ones that they know about. Boeing designed a flawed flight control system. Maybe it’ll fix it after the next fatal crash, or maybe it won’t. Because even if it doesn’t, if the Court rules for the defendants in Sikkelee, then Boeing won’t have to pay the price for its dangerously defective product; only the passengers and their families will.

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Megan Benett and Justin Green are partners at Kreindler & Kreindler in New York City. They can be reached at mbenett@kreindler.com and jgreen@kreindler.com. The views expressed in this article are the authors’.

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Notes

1. Chris Isidore, Boeing Boasted About Streamlined Approval for the 737 Max. Now It’s Cleaning Up the Mess, CNN Business (April 4, 2019), www.cnn.com/2019/04/03/business/boeing-737-max-crisis/index.html.
2. No. 18-1140 (U.S. cert. filed March 1, 2019).
3. Sikkelee v. Precision Airmotive Corp., 907 F.3d 701 (3d Cir. 2018).
4. Jeff Wigington, The Best-Selling Defect in America, Trial 62, 64 (July 2003). 
5. Geier v. Am. Honda Motor Co., Inc., 529 U.S. 861, 903 fn.19 (2000) (Breyer, J., dissenting) (quoting and citing Ralph Nader & Joseph A. Page, Automobile-Design Liabilty and Compliance With Federal Standards, 64 Geo. Wash. L. Rev . 415, 459 (1996)).
6. Nat’l Transp. Safety Bd., Aircraft Accident Report—Uncontrolled Descent and Collision with Terrain—USAir Flight 427, at 295 (1999), https://www.ntsb.gov/investigations/AccidentReports/Reports/AAR9901.pdf. 
7. See Nat’l Transp. Safety Bd., Aircraft Accident Report—Uncontrolled Descent and Collision with Terrain—United Airlines Flight 585, at 1–4 (2001), https://www.ntsb.gov/investigations/AccidentReports/Reports/AAR0101.pdf. 
8. Id.
9. See id. at 296
10. See id. at 296–97. 
11. See Airworthiness Directive 2002-20-07R1; see also Fed. Aviation Admin., Lessons Learned—USAir 737 in Pennsylvania—Airworthiness Directives (ADs) Issued, https://lessonslearned.faa.gov/ll_main.cfm?TabID=1&LLID=1&LLTypeID=12.