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A Domestic Passenger's Deep Vein Thrombosis Claims Are Federally Preempted, the Fifth Circuit Court of Appeals Rules

On April 13, 2004, the United States Court of Appeals for the Fifth Circuit filed its decision finding that, in a case involving deep vein thrombosis ("DVT") on a domestic flight, an airline passenger's tort claims are preempted by the Airline Deregulation Act of 1978 ("ADA"). The trial court's decision to the contrary was reversed and judgment was rendered in favor of the airline.

The Background of the Airline's Appeal

The passenger brought a diversity action in Louisiana federal district court against the airline. He claimed he developed DVT while on a domestic flight from Louisiana to Connecticut. As described by the Fifth Circuit, "DVT occurs when a blood clot develops in a deep vein, usually in the leg. It can cause serious complications if the clot breaks off and travels to the lungs or brain."

The passenger made two allegations against the airline: (1) that the airline was negligent in failing to warn passengers about the risks of DVT (i.e., that "[t]he warning should be that there is a high risk of developing [DVT] in pressurized cabins that exceed a certain length of time."); and (2) that the airline was negligent in failing to provide adequate leg room to prevent DVT and in "failing to allow [passengers] to exercise their legs."

The airline filed a motion to dismiss arguing that the state law claims are preempted. The district court denied the motion reasoning that under Fifth Circuit precedent (Hodges v. Delta Airlines, Inc., 44 F.3d 334 (5th Cir. 1995) (en banc), state regulation of airline "services" is preempted but that "state tort actions for personal physical injuries caused by the operation and maintenance of aircraft are not preempted by federal law." The district court concluded that the passenger's claim arose from the operation of the airline's aircraft and, therefore, was not preempted.

While considering the airline's interlocutory appeal styled Milton B. Witty, III v. Delta Air Lines, Inc. (No. 03-30654), the Fifth Circuit reviewed de novo the district court's ruling on preemption. As in any preemption analysis, the court analyzed the effect of the ADA's preemption provision, which states that, subject to certain exceptions, "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 any air carrier that may provide air transportation under this subpart." 49 U.S.C. section 41713(b)(1) (previously codified at 49 U.S.C. app. section 1305(a)(1) (emphasis added). After considering the intent of an insurance provision in the ADA, the Fifth Circuit in Hodges concluded that "federal preemption of state laws, even certain common law actions 'related to services' of an air carrier, does not displace state tort actions for personal physical injuries or property damage caused by the operation and maintenance of aircraft."

Having recognized in Hodges that there is no "strict dichotomy" between "services" and "operation or maintenance of aircraft," the Fifth Circuit concluded instead that the terms "overlap somewhat conceptually," and suggested the need for a case-by-case resolution of preemption questions.

The DVT Passenger's Insufficient Leg Room Claim Is Expressly Preempted by the "Rate" Prong of the ADA

The passenger argued that had he been provided with more leg room by the airline, the DVT he allegedly developed would have been avoided. The Fifth Circuit held that such a requirement imposed on the airline would "inexorably relate to prices charged by airlines..."

Since requiring more leg room would necessarily reduce the number of seats on the aircraft, such a requirement would impose a standard "relating to a price" under section 41713(b)(1), and is accordingly preempted by the ADA. Section 41713(b)(1) not only preempts the direct regulation of prices by states, but also preempts indirect regulation "relating to" prices that have "the forbidden significant effect" on such prices. Morales v. Trans World Airlines, Inc., 504 U.S. 374, 385, 388 (1992). While state regulation of leg room might not relate to prices as obviously as the state regulation of fare advertising at issue in Morales, the economic effect on prices would in our view be significant, perhaps much more so than the advertising rules at issue in Morales. See Hodges, 44 F.3d at 339 ("Morales relied in part on the fact that the state restrictions on airfare advertising had a significant economic effect on fares.").

As is evident, rather than placing reliance on the "services" prong of the ADA preemption clause, the Fifth Circuit rejected the passenger's argument (i.e., that he should have been provided with extra leg room) using the "rates" prong.

The DVT Passenger's Failure to Warn Claim Is Impliedly Preempted

The Court of Appeals relied on implied preemption principles to dispose of the passenger's claim that there "is a high risk of developing [DVT] in pressurized cabins that exceed a certain length in time." The appellate court determined that Supreme Court precedent, as well as the open question left in Hodges, permitted the court to proceed with the implied preemption analysis.

The Supreme Court, after Hodges, has recognized that preemption under ordinary implied preemption principles is not necessarily foreclosed by the existence of an express preemption provision. Greir v. Am. Honda Motor Co., 529 U.S. 861, 869 (2000). Moreover, Hodges expressly did not reach the issue of "the possible preemptive effect of Federal Aviation Administration safety regulations governing aircraft and carriers." Hodges, 44 F.3d at 339 n. 12. This issue is squarely raised in the pending case.

Under the implied preemption doctrine (field preemption and conflict preemption), a state claim is preempted where "congressional intent to preempt is inferred from the existence of a pervasive regulatory scheme" or where "state law conflicts with federal law or interferes with the achievement of federal objectives." Hodges, 44 F.3d at 335 n. 1. Relying on this premise, the Fifth Circuit found that "field preemption and conflict preemption are both applicable, because there exists a comprehensive scheme of federal regulation, and the imposition of state standards would conflict with federal law and interfere with federal objectives."

A. The Doctrine of Field Preemption Is Applied

In finding the passenger's claim to be field preempted, the appellate court recognized that the FAA not only authorizes but affirmatively directs the administrator of the Federal Aviation Administration to promulgate air safety standards and regulations, including standards and regulations relating to aircraft design, aircraft maintenance and inspections, "the maximum hours or periods of service of airmen and other employees of air carriers," and, as a catchall provision, "other practices, methods, and procedure the Administrator finds necessary for safety in air commerce and national security." 49 U.S.C. section 44701(a). Further, the appellate court noted that pursuant to its congressional charge to regulate air safety, the FAA has issued a broad array of safety-related regulations codified in Title 14 of the Code of Federal Regulations which cover airworthiness standards, crew certification and medical standards, and aircraft operating requirements.

In looking at the field preemption doctrine, the Fifth Circuit pointed out that there are a number of federal regulations governing warnings and instructions that must be given to airline passengers that address "no smoking," the use of the "fasten seat belt" sign, and the like. In addition, the appellate court noted that the FAA has published regulations and an advisory circular setting out in detail the oral briefings, familiar to all domestic air travelers, that flight attendants or other flight personnel must give passengers, as well as the information that must be included in passenger safety briefing cards.

Based on the foregoing, the Fifth Circuit held that federal regulatory requirements for air safety warnings and instructions are exclusive, that they occupy the field, and that they preempt all state standards and requirements. According to the Fifth Circuit, Congress enacted a pervasive regulatory scheme covering air safety concerns that includes regulation of the warnings and instructions that must be given airline passengers, and the Supreme Court observed that the FAA "requires a delicate balance between safety and efficiency, and the protection of persons on the ground.... The interdependence of these factors requires a uniform and exclusive system of federal regulation if the congressional objectives underlying the Federal Aviation Act are to be fulfilled." City of Burbank v. Lockheed Air Terminal, Inc. 411 U.S. 624, 638-39 (1973) (citations omitted). Accordingly, the passenger's failure-to-warn claim was impliedly preempted based on field preemption principles.

B. The Doctrine of Conflict Preemption Is Applied

The Fifth Circuit also recognized that under the circumstances, there exists not only a theoretical conflict, but also a very practical one. "Allowing courts and juries to decide under state law that warnings should be given in addition to those required by the Federal Aviation Administration would necessarily conflict with federal regulations." The court noted that while the passenger argued that a DVT warning should have been given, federal regulations do not require such a warning. Further, the appellate court aptly described the conflict that would result if such a DVT warning were to be given in light of the well-known warning that passengers should remain seated with seat belts fastened.

And any warning that passengers should not stay in their seats, but should instead move about to prevent DVT, would necessarily conflict with any federal determination that, all things considered, passengers are safer in their seats. We note that, due to turbulence concerns, the Federal Aviation Administration recommends on its Internet site that passengers wear seat belts at all times. The site states that from 1981 through 1997 there were 342 reports of turbulence affecting major air carriers, resulting in three deaths, 80 serious injuries, and 769 minor injuries, and that "turbulence is not always predictable."

Further, the Fifth Circuit gave recognition to the fact that warnings can be diluted and lose their impact if too many warnings are given. "Moreover, warnings by their nature conflict, in the sense that the import of one warning is diluted by additional warnings that might be imposed under state law." As the Supreme Court in Morales noted, "[r]equiring too much information in advertisements can have the paradoxical effect of stifling the information that consumers receive." Applying this to the aviation context, the Fifth Circuit reasoned that "[t]he FAA's advisory circular described above warns that '[p]assenger safety briefing cards should contain only information that is essential for safety.'" Otherwise, the appellate court reasoned that there would be a conflict.

Under all the circumstances described, the Fifth Circuit held that, "at a minimum, any such claim [for failure to warn passengers of air travel risks] must be based on a violation of federally mandated warnings. In this case, federal regulations do not require warnings to passengers about the risks of DVT or methods for preventing this condition. [The airline] therefore cannot be held liable for failing to provide warnings or instructions to [the passenger]."

* * * * * * * * *

Those involved in DVT litigation are aware that legal arguments are being advanced in the courts in an effort to obtain dismissal of DVT claims made by international and domestic air travelers. The federal preemption argument is one to be watched, particularly as applied to passengers engaged in domestic air travel. The Fifth Circuit has made its position on federal preemption, as it applies to DVT claims, known. Depending on how the other circuits rule on this important issue, this may become a matter that ultimately will require resolution by the U.S. Supreme Court.

For more information on this issue or other aviation matters, please contact:

  • Brian C. Dalrymple at (415) 984-8275
  • Stephen C. Johnson at (415) 984-8222
  • Hugh R. Koss at (415) 984-8414
  • Kyle Levine at (415) 984-8272
  • Donald B. MacDougall at (516) 832-7611
  • William L. Robinson at (949) 475-6911
  • Eric Strain at (415) 984-8373
  • Christopher D. Thomas at (585) 263-1087
  • Lori Winfree at (949) 475-6916
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