DVT Case Analysis

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Although the decision is consistent with the trend in other jurisdictions, it is noteworthy that those other cases were issued before the most recent U.S. Supreme Court decision to address preemption of state failure to warn claims, Bates v. Dow Agrosciences LLC, 125 S.Ct. 1788 (Apr. 27, 2005); yet the court of appeals in the case at bar never mentions Bates.

In Bates, the court held that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) did not preempt state law tort claims, despite pervasive federal regulation of the field, including requirements as to the exact words that must be used by manufacturers of pesticides on their product warnings.

To the extent that the relevant preemption provisions are different, it would seem that the case for preemption would be even stronger in Bates. The relevant statute, 7 U.S.C. 136v(b), provided that, although a State may regulate the sale and use of federally registered pesticides, "Such State shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under [FIFRA]."

In the aviation field, 49 U.S.C. 41713(b)(1) is less explicit, providing, "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 carrier that may provide air transportation under this subpart."

If Congress intended to preempt state law failure to warn claims, it could have easily drafted a statute similar to that in FIFRA, stating a state shall not impose any warning requirements in addition to or different from those required in the Federal Aviation Act.

Because the court in the case at bar decided the case on implicit preemption grounds, rather than express preemption grounds, the court did not consider this language.

However, while such statutes may not be dispositive of an implied preemption claim as they may be when considering a claim of express preemption — the language is still relevant. As is the fact that in another case, statutory language more suggestive of intent to preempt state law claims has been found not to result in preemption.

Also, while the court notes that the Act affirmatively directs the Administrator of the Federal Aviation Administration to promulgate air safety standards and regulations, and regulations provide for a number of warnings that must be given to passengers, the same is true of FIFRA.

Thus, this would not be a basis for distinguishing the decision in Bates.

Nevertheless, the case for conflict preemption is stronger in the case at bar than it was in Bates. Courts in the DVT cases have appropriately noted that a warning that passengers should move about the plane for their safety would directly conflict with federal determinations that, all things considered, passengers are safer in their seats.

Furthermore, planes fly between different states. It may be burdensome for manufacturers of pesticides to have different warnings for different states in which they sell products. However, as the court noted, it would be impossible for airlines to comply with conflicting state warning requirements on an interstate flight.

Even here, however, it is clear that not all of the warnings that Miezen claims should have been given must be preempted.

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As noted, the warning sought by Miezen — that passengers should move about the plane — would conflict with the FAA determination that passengers are safer if seated.

However, some of the other warnings sought — such as that passengers should wear loose clothing and exercise their calf muscles to promote blood circulation — would not conflict with any federal interests.

Thus, in light of the decision in Bates, the court’s conclusion regarding field preemption is suspect; and because the courts’ discussions of conflict preemption are selective — using only alleged failures to warn that do conflict with FAA determinations as examples, but ignoring those that don’t — this conclusion is suspect, too.

With DVT litigation working its way through courts throughout the country, conflicts may develop on these grounds, requiring ultimate review in the U.S. Supreme Court. In the interim, plaintiffs would be wise to choose another forum, if possible.

– David Ziemer

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David Ziemer can be reached by email.