Clear of Conflict? Examining FAA Certification and Conflict Preemption in Light of the 737 MAX

“Aviation is the branch of engineering that is least forgiving of mistakes. But from a wider point of view, unforgivingness may be a virtue.”
—Freeman Dyson^[1]

I. Introduction

Despite the feelings of many wary travelers, commercial aviation is the safest mode of transportation in the world.^[2] This “unprecedented level of safety” has been achieved by the application of strict federal regulations that encompass the entirety of the aviation industry.^[3] Responsible for these efforts is the Federal Aviation Administration (FAA), which is empowered by law to regulate every aspect of civil aviation.^[4] The most important authority derived from this mandate is certification, which ensures that all federal standards regarding the products, personnel, and entities in air commerce are met and maintained.^[5] However, certification remains an inherently retrospective process by translating lessons learned from past tragedies to define future standards for aircraft design, manufacturing, and maintenance.^[6]

This practice of “regulat[ion] by counting tombstones”^[7] has been the subject of growing criticism after two unprecedented crashes involving the Boeing 737 MAX aircraft exposed grave flaws in the contemporary framework of federal aviation oversight.^[8] A subsequent investigation conducted by the House Committee on Transportation and Infrastructure revealed several specific areas of concern across six categories of findings.^[9] However, this Comment will distill these concerns and categories into two broader issues for discussion. First, the FAA failed to sufficiently exercise its oversight authority in the certification of the 737 MAX, instead favoring a system that afforded Boeing a stunning level of delegation and deference.^[10] Second, Boeing’s internal competitive pressures led to the understatement or outright concealment of fundamental design problems with the aircraft.^[11]

Addressing these two issues may frame future discussions concerning the power of federal certification regulations to preempt state tort law. Specifically, aviation manufacturers have long argued that aircraft certification regulations bar state-based product liability actions.^[12] The Third Circuit Court of Appeals decision in Sikkelee v. Precision Airmotive Corp. has added further turbulence to this debate.^[13] The court’s divided decision rejected a defendant manufacturer’s argument that FAA certification conflict preempted state products liability law.^[14] The holding rested upon an interpretation of three seminal Supreme Court decisions regarding conflict preemption and a firm notion that state tort obligations complement, rather than frustrate, the goal of ensuring aviation safety.^[15] Though criticized, Sikkelee has taken on new significance as courts skeptical of adopting its holding may be influenced by the findings of the Boeing 737 MAX investigations.

This Comment examines current flaws within the FAA certification process viewed through the lens of the Boeing 737 MAX crashes. This Comment then argues that the presence of these flaws may prove persuasive to courts that are considering adopting Sikkelee’s holding. Part II of this Comment briefly reviews the FAA’s history of oversight and describes the certification process, including criticisms and hopeful improvements by recent regulatory reform. Part II concludes by discussing the Boeing 737 MAX crashes and examining structural flaws identified within the FAA’s certification process. Part III provides an overview of the preemption debate, illustrates the Sikkelee decision, and examines the persuasiveness of its holding in the context of the flawed certification of the 737 MAX.

II. From Cradle to Grave: FAA Certification

The Federal Aviation Administration is the product of nearly a century of significant legislative reforms, which have continuously redefined and reinforced the federal government’s role in ensuring air safety.^[16] This broadening of federal responsibility was partly spurred by widely reported aviation accidents that exposed weaknesses in federal oversight and fostered a loss of public confidence in air travel.^[17] As a result, the Federal Aviation Act of 1958—which continues to serve as the FAA’s underlying statutory authority—empowers the FAA with significant jurisdictional and regulatory control over U.S. air travel.^[18] Over time, the FAA has evolved and expanded coextensively with the growth of the aviation industry at large and now maintains authority over the “most sophisticated transportation system in the world.”^[19] Consequently, the FAA’s oversight has been appropriately described as existing from “cradle to grave”^[20] and its degree is “arguably[] unmatched in any other regulated industry.”^[21] In no other contexts is this description more apt than certification.

A. Aircraft Certification

Certification encompasses all aspects of aviation and exists as both a prerequisite and a continuing obligation for all aviation personnel, aircraft, and air carriers.^[22] With regard to civil aircraft, the FAA’s certification authority is a critical component to ensure their safe operation.^[23] Certification allows the FAA to make certain that any and all aircraft—including each individual component—seeking to operate in U.S. airspace meets federal safety requirements.^[24] This process begins at an aircraft’s conceptual phase and extends through its remaining life cycle to ensure continued airworthiness.^[25]

The certification process is administered by the FAA’s Office of Aviation Safety which itself encompasses two separate certification entities: The Aircraft Certification Service (AIR) and the Flight Standards Service (AFS).^[26] AIR manages the approval and certification of aviation products whereas the AFS is responsible for aviation personnel and entities.^[27] AIR is composed of several certification offices that, together with the applicant manufacturer, manage certification projects to ensure initial and continued compliance with federal standards.^[28] Because of AIR’s continuous oversight responsibility, the office relies upon a nationwide sequencing system to order certification submissions depending on resource availability.^[29] This system prioritizes oversight of currently certified products over the issuance of new certificates.^[30]

Federal law provides for, among others, three main categories of aircraft-related certification: Type, Production, and Airworthiness.^[31] These categories work in tandem to encompass the entire operating life of an aircraft and its components.^[32] A type certificate is the “foundation for other FAA approvals, including production and airworthiness approvals” and ensures that a proposed product’s design is in compliance with all applicable airworthiness, noise, fuel venting, and exhaust emission standards.^[33] While the process of obtaining a type certificate depends on the design features of the prospective product,^[34] it typically involves: a conceptual design, the manufacturer’s application for design approval, identifying and submitting a certification plan to meet the applicable design standards, implementation of the design standards through flight testing and other data generation, and a final determination of compliance.^[35]

In the event a manufacturer wishes to modify a design previously approved under an existing type certificate, the manufacturer must first seek permission from the FAA.^[36] Depending on whether the proposed changes are considered “major” or “minor,”^[37] the manufacturer may seek an amended type certificate, supplemental type certificate, or comply with a method deemed acceptable by the FAA.^[38] However, if the FAA determines that a proposed product has undergone extensive changes, “a substantially complete investigation of compliance with the applicable regulations is required.”^[39] The process of obtaining an amended or supplemental type certificate is similar to the process of obtaining a new type certificate but generally quicker and cheaper.^[40] Yet, in practical terms, the distinction between a change requiring an amended, supplemental, or new type certificate has been criticized as blurry and subject to an inappropriate amount of interpretation.^[41]

For manufacturers, the cost of certification cannot be overstated. For many, certification stands as a rigorous, multi-year, multi-million dollar effort, delays in which may significantly affect the profitability of their aircraft.^[42] If an issue affecting the safety of an aircraft remains undiscovered during the aircraft’s initial certification process, recertifying the aircraft once an issue does manifest can pose serious costs.^[43] For example, the original certification of the Boeing 787 Dreamliner required 4,645 hours of flight testing combined with more than two hundred thousand hours of additional FAA testing over an eight-year period.^[44] However, after two incidents of on-board battery fires, the Dreamliner fleet was grounded by the FAA for four months and underwent 7,000 hours of additional testing for recertification.^[45]

B. The FAA’s Struggle to Certify

The FAA similarly experiences the stress of safety oversight. The combination of limited agency resources and the continued growth of the aviation industry has placed strain on the FAA to ensure efficient certification.^[46] In 2013, for example, the FAA’s certification of new air operators and repair stations through the AFS experienced significant backlogs resulting in thousands of applicants awaiting approval, 138 of which waited for more than three years.^[47] In addition, as a result of AIR’s sequencing system (as opposed to the AFS’s first-come-first-served model), the availability of agency resources is the determinant factor of whether to process or wait-list new aircraft certifications.^[48] In response to its growing cost and inefficiency, numerous legislative reforms have taken place aimed at streamlining this process.

A particularly significant reform is the FAA Reauthorization Act of 2018.^[49] Though not the first legislation targeting the certification process,^[50] the 2018 Act stands as the “most comprehensive aviation reauthorization measure enacted in over 30 years.”^[51] Congress, in part, sought to address the lack of performance metrics of certification activities as well as the perceived inconsistency with which federal regulatory standards are applied to manufacturers.^[52] The 2018 Act mandates the creation of several policy-level advisory committees.^[53] One such committee is the Safety Oversight and Certification Advisory Committee (SOCAC) which advises the Secretary of Transportation on policy matters relating to the FAA’s oversight and certification programs.^[54] Notably, the 2018 Act requires SOCAC’s policy recommendations to include methods of enhancing the global competitiveness of U.S. aviation manufacturing and a mandate to collaborate with members of the aviation industry in reaching its recommendations.^[55] With regards to performance objectives and metrics, the 2018 Act requires the FAA to work in conjunction with SOCAC to ensure progress is made towards “eliminating certification delays and improving cycle times.”^[56] These performance objectives must likewise ensure certification works to “maintain[] the leadership of the United States in . . . aerospace.”^[57] The expectation of setting these industry-focused objectives and tracking performance metrics is to assist the FAA in “identify[ing] inefficiencies, increas[ing] accountability, and improv[ing] safety.”^[58]

The 2018 Act also reaffirms the FAA’s commitment to the Organization Designation Authorization (ODA) program.^[59] The ODA program allows the FAA to approve private individuals and organizations—including aviation manufacturers—to conduct certain certification activities.^[60] This delegated responsibility ranges from conducting compliance testing for federal certification regulations to authorizing the ODA holder to issue certain certifications on behalf of the FAA.^[61] The ODA program was originally intended to provide the FAA with the authority to delegate the certification of “well-understood, non-critical, or low-risk designs” in order to leverage limited agency resources on areas of higher risk.^[62] Indeed, the FAA claims that the program acts as a critical component to achieve its integrated oversight philosophy, which allocates agency resources based on levels of perceived risk.^[63] By relying on ODA holders to adopt safety management systems and perform inspections and tests relying on these systems, the FAA asserts that it can better focus agency resources on higher-risk tasks by relying on the data provided by ODA holders.^[64]

Of the approximately 1,600 domestic manufacturers the FAA currently supervises, eighty are ODA holders.^[65] Of these, eighteen have authority to perform production certification activities and eleven have authority to conduct type certification work.^[66] In some cases a manufacturer, such as the Boeing ODA, may have the authority to perform work related to type, production, and airworthiness certifications.^[67] Aviation oversight is currently dominated by these ODA holders which perform 90% of all certification activities in the United States.^[68] Thus, it is critical for the FAA to have an efficient process to perform oversight of their activities.

Yet, the FAA’s oversight of the ODA program has long been criticized.^[69] The 2005 legislation creating the ODA program was the result of at least a decade of successful lobbying by aviation manufacturers to gain more authority over the certification process.^[70] Indeed, subsequent legislation like the 2012 FAA Modernization and Reform Act and the 2018 Act have crystalized this industry-centric approach to oversight and regulatory interpretation to the detriment of the FAA’s safety mandate.^[71] The “FAA lacks a comprehensive process for determining the staffing levels needed to provide ODA oversight,” which only magnifies this problem.^[72] Moreover, the FAA’s existing guidance concerning how AIR certification offices perform ODA oversight and assess areas of higher risk—one of the core goals of the FAA’s integrated oversight philosophy—has been deemed insufficient.^[73] This is particularly relevant when considering the rapidly changing pace of aviation technology and aircraft complexity.^[74] Though the 2018 Act sought to address these shortfalls by establishing a central ODA policy office as well as a mandate for the FAA to assess its ODA oversight staffing needs, it is unclear whether these changes will markedly improve either issue.^[75] What is clear is that, without strong oversight or the existence of definite guidance on evaluating the risk of proposed aircraft designs during certification, disastrous consequences can and have occurred.

C. The Boeing 737 MAX

In the span of five months between fall 2018 and spring 2019, two Boeing 737 MAX airplanes tragically crashed shortly after takeoff, killing a combined 346 passengers and crew.^[76] As one report somberly explained, “For two brand-new aircraft . . . to crash within five months of each other [is] extraordinary and unprecedented.”^[77] Yet, the 737 MAX is not a “new” airplane in the traditional sense.^[78] The MAX is the fourth generation and twelfth derivative model of the original 737 first certified in 1967.^[79] The 737 MAX was born out of the financial pressure on Boeing to compete with the popular Airbus A320neo aircraft in the market for high efficiency commercial jets.^[80] Rather than designing an entirely new airframe, which would require a long and costly certification process as well as cumbersome pilot training for airlines, Boeing opted to update the 737 design by fitting larger and more fuel-efficient engines under its wings.^[81] But because of the relatively low stance of the airframe—a design choice intentionally introduced to make loading cargo without equipment easier—these large engines had to be shifted farther forward on the wings to allow them to fit.^[82] While solving the height problem, the new size and location of the engines created a tendency for the nose of the 737 MAX to pitch up during some phases of flight.^[83]

To solve this new issue, Boeing engineers implemented the Maneuvering Characteristics Augmentation System or MCAS.^[84] MCAS is an automated flight control system which assists in preventing the aircraft from stalling (loss of aerodynamic lift) as a result of an excessively high “angle of attack” (an excessively high nose-up position in relation to the oncoming airflow).^[85] The software relies on data provided from the aircraft’s two angle of attack sensors to determine if the conditions of a stall are present.^[86] Once activated, MCAS places the aircraft into an automatic nose-down position until it detects an appropriate angle of attack.^[87]

Boeing intended for this system to operate in the background so that the 737 MAX flew similarly to previous versions of the 737.^[88] In fact, pilots “were unaware of the system’s existence in most cases,”^[89] and the company “withheld knowledge that a pilot would need to diagnose and respond” to catastrophic problems that can be “caused by an erroneous MCAS activation.”^[90] Though the system could be overridden by pilot input, it would automatically re-engage and place the plane in a nose-down position after five seconds if it continued to detect a high angle of attack.^[91] Because MCAS was designed to rely on only one of the aircraft’s two sensors at any given time, a malfunction in the dependent sensor could cause the system to erroneously believe the aircraft was pitching dangerously high.^[92] If this occurred, “MCAS would activate repeatedly and keep pushing the nose of the plane down unless the pilot knew how to effectively deactivate MCAS.”^[93] The improper activation of MCAS due to inaccurate sensor data has been found to have played a critical role in the loss of Lion Air Flight 610 and Ethiopian Airlines Flight 302.^[94]

Subsequent investigations revealed that the FAA was unable to effectively perform oversight over the development of the 737 MAX.^[95] Instead, the agency relied heavily upon Boeing’s representations about the safety of the aircraft’s design and routinely delegated safety-critical certification tasks to Boeing.^[96] While the FAA was generally aware of MCAS, the agency was “hampered by poor, disjointed . . . communication among the agency’s own internal offices responsible for certifying . . . MCAS,” making it difficult to understand the system’s potential safety ramifications.^[97] Worse still, the FAA was likely insufficiently staffed and inexperienced for the aircraft’s extensive and technically complex certification process.^[98] One report noted that during the aircraft’s development, only forty-five agency personnel oversaw approximately 1,500 Boeing employees.^[99] Of those forty-five personnel, only twenty-four were engineers, eighteen of which were entry or working-level engineers with varied levels of certification experience.^[100]

In addition, some Boeing employees knew about the aircraft’s issues but failed to disclose their concerns to regulators.^[101] In a 2016 exchange, a former Boeing chief technical pilot for the 737 MAX described experiences of “MCAS . . . running rampant in the [simulator]” and later joked, “granted, I suck at flying, but . . . this was egregious.”^[102] In other company communications, one Boeing employee lamented, “I still haven’t been forgiven by God for the covering up I did last year,” and another complained that the “[737 MAX] is designed by clowns who in turn are supervised by monkeys.”^[103]

Worse still, Boeing’s own internal test data prepared by Boeing ODA authorized representatives reflected the danger of slow pilot reaction time to an uncommanded MCAS activation.^[104] As the final investigative report by the House Committee on Transportation and Infrastructure noted, “Between 2015 and 2018 Boeing issued six separate coordination sheets on MCAS that referenced the ‘catastrophic’ consequences of a greater than 10-second pilot response time.”^[105] Despite this blatant and grave risk, there is no indication that Boeing shared the coordination sheet data with the FAA, its customers, or 737 MAX pilots.^[106]

These oversight failures are likely a symptom of the political and economic pressures facing both regulators and manufacturers. It is clear that Congress and FAA leaders have largely endorsed a “hands-off” approach to the oversight of Boeing and allowed the company to “certify 96 percent of its own work.”^[107] This relaxed oversight has resulted in the FAA overruling safety recommendations made by agency engineers to prevent higher costs and production delays for Boeing.^[108] Indeed, an internal FAA survey found that 56% of AIR employees felt that there is “too much external influence on the agency” and that it is impacting safety and 54% of respondents felt that the FAA “does not appropriately delegate certification activities” to ODA holders.^[109] For Boeing, the FAA’s failure to “ask enough questions or scrutinize sufficiently Boeing responses regarding critical certification related issues” was crucial to allowing the certification process of the 737 MAX to proceed smoothly as it raced to market the aircraft before Airbus could release the updated A320neo.^[110]

The disastrous results thus demonstrate that merely holding an FAA certification is not sufficient to ensure that a particular design is actually safe. In fact, the outcome is hardly surprising,^[111] and the industry-focused policy mandates within the 2018 Act may exacerbate the safety risks demonstrated by the 737 MAX crashes.^[112] Significantly, the FAA’s demonstrated failures in ensuring the safety of the 737 MAX during certification may influence the debate surrounding FAA certification and its ability to conflict-preempt state tort law.

III. Impossibility Preemption and FAA Certification

Federal preemption is one of the most commonly asserted and “powerful defenses in all of products liability law” and continues to appear in a variety of product litigation.^[113] Because Congress has generally delegated regulatory responsibility over product safety to various federal agencies, defendants have increasingly looked to agency rules to support preemption.^[114] For decades, aviation manufacturers have argued that federal aviation certification regulations preempt state tort law, thus barring prospective plaintiffs from bringing products liability actions based on claims of defectively manufactured or designed aircraft when that aircraft held a valid certification from the FAA.^[115] This position has largely been endorsed by the FAA and other industry trade groups in amicus briefs filed on behalf of defendant manufacturers.^[116] This Part will address this argument in the context of both Sikkelee v. Precision Airmotive Corp. and the 737 MAX.

A. Overview of Conflict Preemption

Federal preemption derives from the Supremacy Clause of the U.S. Constitution.^[117] In essence, this doctrine mandates that under certain circumstances federal law overrides state law where it is Congress’s intention for it to do so.^[118] The Supreme Court recognizes two forms of preemption: express and implied.^[119] Express preemption occurs where “Congress generates legislation that explicitly states its intention to override existing state statutes.”^[120] In the absence of an explicit preemptive command by Congress, federal law may nonetheless preempt state law by implication in two situations.^[121] Either Congress must have intended for federal law to “occup[y] the field” where state law seeks authority or where state law poses “any conflict with a federal statute.”^[122]

The latter, referred to as conflict preemption, “turns on the identification of ‘actual conflict,’” between federal and state law.^[123] Actual conflict exists where it is either “impossible for a private party to comply with both state and federal requirements” or where state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”^[124] In determining whether impossibility is present, “[t]he Court has generally articulated a very narrow ‘impossibility standard,’”^[125] which has traditionally required “no less than [a] complete, physical inability to contemporaneously satisfy both federal and state requirements.”^[126]

In some cases, the federal requirements at issue in preemption decisions are both technically complex and voluminous, requiring some form of agency input.^[127] When cases involve obstacle preemption, a court may give “some weight” to an agency’s interpretation of state tort law’s impact on its regulation but seek to only consider the actual substance of state and federal law.^[128] In contrast, agencies are given substantially more interpretive authority over the function, rather than the preemptive effect, of their own regulations when impossibility preemption is at issue.^[129]

The pervasive and comprehensive nature of federal aviation regulations has long been recognized by courts when making preemption determinations.^[130] Several federal statutes “directly affect” the relationship between federal and state authority when governing aviation matters.^[131] In particular, the Airline Deregulation Act of 1978 and General Aviation Revitalization Act of 1994 expressly preempt state law under certain circumstances.^[132] Unlike the above statutes, however, the underlying statutory authority for aircraft certification—the Federal Aviation Act of 1958 (FAA Act)—does not contain a similar expression of preemptive intent.^[133]

Instead, the FAA Act specifically allows for “any other remedies provided by law” in addition to those found within the Act itself.^[134] As such, courts have rejected arguments that state tort remedies are preempted and have instead extended preemption to “the standard of care applied to negligence, strict liability, and other tort-based claims.”^[135] However, a number of courts have gone further to determine that the “standards of care related to aviation safety . . . must [also] not be preempted,” arguing that a manufacturer’s duty of safety ought to extend beyond FAA regulations.^[136] The most significant advancement of this position came in the 2018 Third Circuit Court of Appeals decision in Sikkelee v. Precision Airmotive Corp.^[137]

B. Impossibility Preemption Rejected: Sikkelee v. Precision Airmotive Corp.

In July 2005, pilot Davis Sikkelee was killed when his rented Cessna 172 crashed shortly after takeoff.^[138] This particular aircraft was equipped with a Lycoming O-320-D2C engine and an allegedly defective Marvel-Schebler MA-4SPA carburetor.^[139] During the engine’s certification, Lycoming requested that the FAA grant an exception to the required design practices specific to the engine’s carburetor assembly.^[140] At the time, the FAA required the bolts connecting the carburetor’s throttle body (top-half) and float bowl (bottom-half) to be secured using safety wire----a device which prevents loosening due to normal engine vibration.^[141] This practice was required in response to reports of “[n]umerous operational malfunctions . . . result[ing] in erratic engine operations and . . . complete engine stoppage[s]” involving aircraft equipped with certain Marvel-Schebler carburetors.^[142] Lycoming’s request proposed using hex bolts and lock-tab washers instead of the required safety wire.^[143] The FAA granted this exception and, in 1966, the agency issued a type certification for the engine.^[144]

By 1971, the FAA had warned Lycoming that the carburetor’s design was ineffective in securing the assembly, citing sixteen reports of bolts loosening with twenty-nine more by 1972.^[145] The FAA requested that Lycoming review these reports and propose solutions to the loosening issue.^[146] Lycoming responded by issuing a Service Bulletin reporting that leaks had occurred in the carburetor assembly and that it should be inspected and repaired if necessary.^[147] However, this problem persisted over the following decades as “[o]wners and mechanics [complained of] . . . loose screws, leaking carburetors, and poor engine performance.”^[148] After Precision Airmotive’s acquisition of Marvel-Schebler in 2004, Lycoming was again alerted of the carburetor’s loosening issue—particularly on the Cessna 172 aircraft—and noted that it had “identified no such trends with other carburetor models.”^[149] That same year, the engine belonging to the fated aircraft was overhauled—which included a rebuild of the carburetor but in accordance with its original specifications.^[150] The plane was placed back into service and one year later, Davis Sikkelee was killed in its crash.^[151]

The decedent’s wife subsequently asserted, among others, state tort claims for strict liability and negligence in a federal district court, alleging the aircraft lost power and crashed due to a defect in the engine and carburetor.^[152] Lycoming sought summary judgment, which the district court granted, holding that the claims were field-preempted by federal air safety regulation.^[153] On appeal, the Third Circuit reversed and remanded the issue, determining that the state tort claims were not field preempted, but may be subject to conflict-preemption restrictions.^[154] On remand, Lycoming again successfully moved for summary judgment with the district court concluding Sikkelee’s claims were preempted by impossibility.^[155] Sikkelee appealed.^[156]

In a 2–1 decision, the Third Circuit again reversed the district court’s judgment and remanded the state-law claims.^[157] The majority’s holding largely rested on an interpretation of impossibility preemption derived from three seminal Supreme Court impossibility preemption precedents: Wyeth, PLIVA, and Bartlett.^[158]

In Wyeth, a patient brought a failure-to-warn action after being injured by a brand name antinausea medication.^[159] The defendant asserted the claims were conflict preempted by Food and Drug Administration (FDA) drug labeling regulations.^[160] The Supreme Court rejected this argument, concluding that “[FDA] regulation[s] permitted Wyeth to unilaterally strengthen its warning” after filing a supplemental application with the FDA through an application process known as “changes being effected,” or CBE.^[161] Though the FDA could later reject this supplemental application, this mere possibility was not enough to completely preempt the state tort claims at issue “absent clear evidence” that the FDA would have actually rejected the application.^[162]

In contrast, the Court in PLIVA and Bartlett accepted the impossibility preemption argument in the context of the warning labels on generic drugs.^[163] Unlike brand-name drug manufacturers, generic drug manufacturers must demonstrate equivalence to a previously approved drug, including its warning label, to gain FDA approval.^[164] Because of this equivalence, generic drug manufacturers can never unilaterally change the warning labels present on their products unlike brand-name manufacturers.^[165] The Court held in both cases that because it was impossible to comply with both state and federal law simultaneously, the state-law claims were preempted.^[166]

Weighing their individual facts, the court found Lycoming more analogous to the defendant in Wyeth than to those in PLIVA or Bartlett.^[167] The court noted that previous interactions between the FAA and Lycoming clearly indicated that the manufacturer “could have” petitioned the FAA to adjust the allegedly defective engine design.^[168] The court emphasized not only that Lycoming could have petitioned the FAA to change its product but also that the FAA would have likely approved the change sought by the plaintiff based on their previous interactions with Lycoming.^[169] Thus, absent “clear evidence that the [FAA] would not have approved a change,” the court contended that the Wyeth decision controlled and impossibility preemption did not apply.^[170] The majority then concluded by lauding the complementary effects of state law claims and federal regulation and warned of the safety ramifications of preemption, stating that “manufacturer[s] would have little incentive to correct problems . . . if it could rely on a type certificate to avoid liability.”^[171]

In her dissent, Judge Roth criticized what she perceived as the majority’s “piecemeal approach” to impossibility preemption precedent, arguing the above cases form a cohesive standard mandating that Sikkelee’s claims be preempted.^[172] The dissent stressed that the question was not whether Lycoming could have successfully modified the carburetor’s design, but instead whether the company could independently accomplish this without or prior to FAA approval.^[173] Looking to the federal certification regulations, the dissent found that independent action was prohibited, and thus preempted, by impossibility.^[174]

C. Considering Future Applications of Sikkelee’s Holding

As the Supreme Court has declined to review Sikkelee,^[175] the holding now has the potential to impact the decisions of other courts considering preemption arguments made by defendant aviation manufacturers. Indeed, “[n]o court of appeals [has] directly disagreed with the Third Circuit’s holding,”^[176] but the persuasiveness of Sikkelee may rest upon two questions: (1) does the holding frustrate Supreme Court precedent like the dissent suggests and (2) does the holding address the public and private oversight failures like those exposed by the certification of the 737 MAX?

As to the first question, the arguments addressed in Judge Roth’s dissent warrant strong consideration by future courts. Sikkelee’s majority seems to have placed a major emphasis on the manufacturer’s mere ability to seek FAA approval to modify the type design of its product rather than its ability to unilaterally do the same.^[177] The contention ultimately seems to be that Lycoming was not “stuck with the design initially adopted and approved” by the FAA and thus “could have” petitioned the agency to adjust its design which distinguishes Lycoming from the generic drug manufacturers in PLIVA and Bartlett.^[178] However, whether a manufacturer is “stuck with” a federally approved design is irrelevant to an impossibility preemption analysis.^[179] Indeed, the decision in Wyeth turned upon a finding that the FDA’s CBE rule “permitted [the defendant] to provide [a stronger] warning before receiving the FDA’s approval,” not whether the defendant was completely incapable of modifying its product altogether.^[180] Thus, in the context of aviation where design changes can never be made before FAA approval, the court appears to suggest that a manufacturer’s ability to petition the FAA to change its product is akin to independently changing the product before agency approval.^[181]

The court similarly placed much weight on an interpretation of the “clear evidence” language proffered by Wyeth when discussing Lycoming’s burden was to “present ‘clear evidence that the [FAA] would not have approved a change.’”^[182] This seems to be a potential misapplication of Wyeth and its progeny. The “clear evidence” standard is not an evidentiary burden, but rather is a legal question for courts to examine when a manufacturer could have made an independent, unilateral change pursuant to existing federal regulations (like those expressly authorized by the FDA’s CBE rule) but did not do so.^[183] In this regard, a manufacturer could submit “clear evidence” that an agency would have likely rejected its unilateral change ex post to support an argument of impossibility preemption regardless if they could have submitted the change.^[184]

Despite these criticisms, the Third Circuit has provided a tenable reading of impossibility preemption precedent in the context of aviation. The court’s broader interpretation of Wyeth seems to merely require that manufacturers with knowledge that their product is defective must, at a minimum, petition the FAA to modify their type certificate to adopt a safer design when that design has been previously contemplated by either the FAA or the manufacturer. This will serve as an incentive for aviation manufacturers “to be more aggressive in evaluating and requesting design changes as soon as a pattern of issues with a component part or design arises.”^[185] Further, the court’s holding does not represent a particularly radical departure from preemption jurisprudence.^[186] Indeed, one current Supreme Court Justice has expressed skepticism toward the freewheeling use of preemption to override state tort obligations absent specific statutory language as is the case in Sikkelee.^[187] Further, in at least one sharply divided dissenting opinion, Justice Sotomayor and former Justice Ginsburg justified not extending preemption by noting the “limitations of ex ante federal regulatory review” and the “significant resource constraints” faced by federal agencies.^[188] Both issues are vividly present within the FAA’s oversight of the aviation industry.^[189]

As to the second question, the court’s holding is also an important step in addressing the fundamental flaws present within FAA certification as exposed by the 737 MAX. The holding clearly places a significant responsibility on manufacturers to make their products safer when a problem is brought to their attention. But the complementary effect of state-based tort obligations may inevitably promote the “effective and vigorous safety culture” missing from the 737 MAX’s development.^[190] This influence can similarly disincentivize efforts to obfuscate information regarding the safety of aircraft systems when manufacturers cannot rely on a FAA certification to shield them from product liability claims.

Until the “FAA . . . develop[s] a more aggressive certification and oversight structure to ensure safe aircraft designs and to regain the confidence of the flying public,” this decision serves as a much needed supplement to the current FAA certification regime.^[191] Indeed, “[t]he fact that multiple technical design missteps or certification blunders were deemed ‘compliant’ by the FAA” during the development of the 737 MAX “points to a critical need for legislative and regulatory reforms.”^[192] Unfortunately, there appears to be little hope for the systemic reforms required to address these grave flaws in the near future as legislators have clearly endorsed an industry-centric approach to FAA certification.^[193] For now, Sikkelee stands as a lone but critical incentive for manufacturers to ensure the safety of their aircraft design and avoid the dangers associated with cost-cutting measures.

IV. Conclusion

Though we live in an era of unprecedented safety in commercial aviation as a result of strict federal regulations, the certification of the Boeing 737 MAX has demonstrated that this system is not without flaws. In the face of slow or counterproductive legislation and a sluggish regulatory response to the issues plaguing aircraft certification, Sikkelee’s rejection of the preemptive power of certification is an important stopgap measure to improve contemporary aviation safety. As manufacturers continue to assert that FAA certifications preempt state-based tort obligations, the grave lessons learned from the development of the 737 MAX may provide the persuasion necessary for other courts to adopt Sikkelee’s holding.

Austin L. Turman