Center for Progressive Reform

Preempting Safety

Holding Airplane Manufacturers Accountable in Court

Companies that make and sell defective products that end up hurting people sometimes face fines from regulators, and very rarely, criminal charges. Important as such sanctions are, they do nothing to compensate victims and little to deter future bad behavior by industry. Traditionally, that’s where civil suits come into play. By giving victims a means to be “made whole,” they force accountability on companies and help deter future violations. But a decades-long push to protect industry from civil suits — tort “reform” — has taken its toll, making it harder for victims to seek justice in court.

A recent federal appeals court ruling related to a plane crash dealt a setback to the campaign to close the courthouse door.

That litigation is the subject of CPR’s The Truth About Torts: Regulatory Preemption at the Federal Aviation Administration. In it, five CPR co-authors explore a decision of the U.S. Court of Appeals for the Third Circuit in a case involving a husband who died in a small plane crash caused by a defective part. In 2016, the court held that federal law and rules from the Federal Aviation Administration (FAA) do not generally “preempt,” or block, product liability cases in state courts, as industry had argued. The decision, if it stands, offers some hope to the families of people hurt or killed in small plane crashes that they will be able to hold manufacturers accountable for the harm caused by their defective products.

The case turns on the legal doctrine of regulatory preemption, which frames the question of whether actions by federal regulatory agencies can block citizen suits under state law. Typically, federal law can preempt state law if Congress asserts the federal authority under the Constitution to do so. But in the absence of such an “express preemption,” rules from federal regulatory agencies are judged differently.

The authors note, “This is especially crucial given that the other legal institutions aimed at addressing harmful corporate behavior or products – namely, federal and state regulatory agencies – offer protections that are often not stringent enough or that are poorly enforced, enabling scofflaw companies to endanger the public.” They point to a study that found that “resource constraints have compelled the FAA to outsource nearly 90 percent of its safety certification activities to private persons or organizations, including the aircraft manufacturers themselves. In this way, federal preemption often leaves the public less protected against dangerous activities or products and with no effective means for obtaining compensation for their injuries when they are harmed.”

As co-author and CPR Member Scholar Nina Mendleson observes, “The bottom line is that state product liability laws and cases contribute to the FAA's goal of preventing harm before it occurs by deterring manufacturers from selling and installing defective parts in the first place. In addition, when people are hurt, the civil justice system stands ready to provide compensation."

Mendelson’s co-authors are CPR Member Scholars Thomas McGarity, Sidney Shapiro, and CPR Senior Policy Analyst James Goodwin and CPR Policy Analyst Mollie Rosenzweig.

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