The Status of Trial Lawyers, Punitive Damages and the Public Interest
by Randy Baker
Trial News, published by the Washington State Trial Lawyers Association, Vol. 43, no. 5., January 2008.
Last fall in Montalvo v. Spirit Airlines ___ F.3d ___, 2007 WL 3311995 (9th Cir. Nov. 09, 2007) the Ninth Circuit Court of Appeals issued a very mixed message about the extent to which the aviation industry will remain liable for its tortious conduct. The Montalvo cases1 were filed by former airline passengers (their survivors in some cases), who alleged airlines had caused them to incur deep vein thrombosis (DVT) by failing: 1) to provide an appropriate configuration of legroom, and 2) to warn of DVT. The district court granted the airline defendants' joint motion to dismiss both claims under Federal Rule of Civil Procedure 12 (b)(6) on grounds of federal pre-emption. The plaintiffs appealed and the Ninth Circuit reversed the dismissal of the legroom claims, but it affirmed the dismissal of the warning claims. The ruling on the legroom claims follows prevailing authority; the ruling on the warning claims does not.
While Congress has the power to pre-empt state laws, it is presumed that state laws concerning traditional spheres of state regulation, such as the common law of negligence and duty of a common carrier in issue in the Montalvo cases, are not pre-empted. See New York State Blue Cross Plans v. Travelers Ins., Co. 514 U.S. 645, 654-655 (1995). This presumption may be overcome if Congress both inserts a pre-emption clause into a statute, and thereby expressly preempts state law, or if Congressional intent to pre-empt state law is implicit in the structure and application of a statute. See Spreitsma v. Mercury Marine, 537 U.S. 51, 62-64 (2002).
In the Montalvo cases the district court held both forms of pre- emption applied. It held the defective legroom claim was expressly pre-empted under the 1978 Airline Deregulation Act (ADA), which states that regulation of airline rates, routes or services is pre-empted. See 49 U.S.C. § 41713 (b) (1). The district court reasoned that permitting imposition of liability under the defective legroom configuration theory would pressure airlines to increase available legroom. This, according to the court, would require airlines to reduce the number of seats per plane and thus raise fares, thereby rendering the underlying torts prohibited state regulation of fares. Montalvo, 2007 WL 3311995, at *3.
In reversing the district court, the Ninth Circuit explained that there was no evidence that compliance with the duty underlying plaintiffs' legroom claims would exert a "significant effect"on airfares. Montalvo, 2007 WL 3311995, at *8-9. In Morales v. Trans World Airline, Inc., 504 U.S. 374, 388-390 (1992) the Supreme Court had ruled that, absent such an impact, a state law otherwise unconnected to the regulation of airline rates, routes or services would not run afoul of the ADA. Accordingly, the Ninth Circuit remanded the case to the district court for additional fact-finding on this point. Montalvo, 2007 WL 3311995, at *9.
Whether the facts ultimately will show that the requisite modification of legroom configuration will affect air fares is unclear. Indeed, what constitutes a "significant effect" on air fares requiring pre-emption under the ADA remains an open question. However, the Ninth Circuit has made it clear that merely showing application of a common law liability rule would have some effect on fares does not suffice to establish pre- emption under the ADA. See Duncan v. Northwest Airlines, Inc., 208 F.3d 1112, 1115-1116 (9th Cir. 2000).
Thus, Montalvo's holding on ADA pre-emption appears consistent with the aviation industry continuing to generally remain liable for its tortious conduct. Its holding on the failure to warn claims, however, creates considerable reason for doubt.
The district court dismissed the failure to warn claims on the grounds that the 1958 Federal Aviation Act (FAA) impliedly pre-empted the sub- field of aviation safety warnings and/or the entire field of aviation safety. The Montalvo court affirmed dismissal of these claims on the latter theory, i.e. that the entire field of aviation safety was pre-empted. Montalvo, 2007 WL 3311995, at *6. In so doing, the court cited " the pervasiveness of the federal regulations, the dominance of the federal interest in this area, and the legislative goal of establishing a single, uniform system of control over air safety. " Id. Since the Federal Aviation Administration had not mandated warnings to passengers about DVT, the court reasoned the airlines had violated no duty to the plaintiffs. Id. at *7.
This holding is remarkable in several respects. First, it entirely disregards and appears irreconcilable with the U.S. Supreme Court's decision in Spreitsma v. Mercury Marine, 537 U.S. 51 (2002). Spreitsma was a personal injury case against a boat engine manufacturer. As in Montalvo, the defendant claimed the entire field (of boating safety) was impliedly pre-empted by federal law, the Federal Boat Safety Act (FBSA). As with the FAA, the FBSA granted the federal government authority to establish uniform national standards, and, as with aviation, the federal government had regulated the field extensively. Id. at 69. Also as in Montalvo, the common law duty in issue in Spreitsma, attaching propeller guards to boat motors, was not a duty imposed by any federal regulation. Id. Indeed, the case for pre-emption in Spreitsma arguably was stronger than in Montalvo, since the legislative history of the FBSA, unlike that of the FAA, stated the Act was intended to pre-empt the field of boating safety. Id. at 69-70.
The Spreitsma court nonetheless unanimously held the field of boating safety was not preempted. Id. The court explained that the evidence, while arguably sufficient to show positive state regulation of boating safety to have been pre-empted, was insufficient to show Congressional intent to pre-empt common law personal injury claims, whose purpose was more remedial than regulatory. Id. at 64, 69-70. The court also relied on the FBSA's savings clause, which asserted existing remedies would not be affected by the law. Id. at 70. The FAA also contains such a clause.2 Charas v. Trans World Airlines, Inc., 160 F.3d 1259, 1262 (9th Cir. 1998) (en banc). Yet, it was ignored by the Montalvo court, as was the elevated threshold for pre-empting state common law remedies.
These factors were cited by the Tenth Circuit Court of Appeals in holding the field of aviation safety was not impliedly pre-empted by the FAA. See Cleveland v. Piper Aircraft Corp., 985 F.2d 1438, 1444 (10th Cir. 1993). Citing, inter alia, the FAA's savings clause, the Eleventh Circuit Court of Appeals also has held the field of aviation safety to not be pre-empted. See Public Health Trust v. Lake Aircraft Inc., 992 F.2d 291, 293-295 (11th Cir. 1993). Montalvo addressed neither of those cases.
Montalvo does cite the Third Circuit's decision in Abdullah v. American Airlines, Inc., 181 F.3d 363 (3d Cir. 1998) as holding that the FAA pre-empts "the entire field of aviation safety." Montalvo, 2007 WL 3311995, at *6. Yet, that was not Abdullah's holding. Abdullah actually held the FAA pre-empted state law " standards of care" in the field of aviation safety. Abdullah, 181 F.3d at 375- 376. As did the Tenth and Eleventh Circuits, in Abdullah the Third Circuit cited the FAA's savings clause in holding the plaintiffs' state tort claims to not be pre-empted, although Abdullah held the predicate of those claims must be the "overarching standard of care" (prohibiting careless or reckless operation of an aircraft) imposed by the Federal Aviation Administration under 14 C.F.R. § 91.13(a). Abdullah, 181 F.3d at 365, 371.
Montalvo's holding about pre-emption under the FAA is doctrinally radical. It also is broad. This breadth was underlined by Greene v. B.F. Goodrich Avionics Systems, Inc., 409 F.3d 784 (6th Cir. 2005), the only other federal appellate decision to hold the entire field of aviation safety to be pre-empted.3 Greene held the manufacturer of a defective gyroscope that caused the crash of a helicopter and the death of its pilot could not be sued for failure to warn of the defect, because the FAA did not require such a warning. Id. at 794. Undoubtedly, there are numerous unreasonable aviation hazards similar to those in issue in Greene and Montalvo, not expressly addressed in an FAA regulation, which nonetheless will result in serious injury or death. Under Montalvo, the victims of those hazards will apparently have no remedy.
In summary, Montalvo's holding about express pre-emption under the ADA was legally conservative and erects no new procedural barriers for plaintiffs. However, its holding about FAA pre-emption is legally radical, and it may often pose an insuperable barrier to plaintiffs seeking compensation for injuries unreasonably caused by the aviation industry.
Counsel for appellants in the Montalvo cases were O'Reilly & Danko (San Mateo), Sterns & Walker (Oakland), Magana, Cathcart & McCarthy (Los Angeles) and The Law Office of Randy Baker (Seattle); Randy Baker litigated the appeal.
1. Montalvo involved 16 consolidated appeals arising from cases that had been transferred to the Northern District of California by the Judicial Panel on Multidistrict Litigation. The transferred cases all raised the claim of liability for flight-induced deep vein thrombosis. Deep vein thrombosis is a blood clot in a deep vein, which can result in stroke or pulmonary embolism, and is sometimes fatal. The condition can be caused by remaining seated for extended periods of time, and usually is preventable by exercising the legs intermittently.
2. Common law torts, such as the duty of a common carrier, were well-established remedies in 1958 when the FAA was enacted, and already had been applied to aviation. See, e.g. Smith v. O'Donnell, 215 Cal. 714 (1932).
3. While the majority in Greene also relied on Abdullah to support its holding, the dissent in Greene pointed out that Abdullah did not support the court's holding. Greene, 409 F.3d at 797-798 (Cole, J., concurring and dissenting). The Montalvo court did not mention Greene.