Federal Aviation Act preempts failure to warn claims

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Information provided by the Society of Interventional Radiology © 2004

The Wisconsin Court of Appeals held on May 17 that the Federal Aviation Act of 1958 preempts a state law claim alleging that an airline negligently failed to warn passengers about the dangers of deep vein thrombosis (DVT).

Jerome Miezin traveled on a Midwest Express flight from Milwaukee to Boston on Oct. 15, 1999, and returned on Oct. 23. Both flights were less than three hours long.

After his return to Milwaukee, Miezin experienced pain in his leg, and was diagnosed with DVT, a blood clotting condition that develops in the deep veins of the lower extremities.

Miezin brought suit against Midwest, alleging that he has suffered permanent disability and disfigurement as a result of DVT, which he claimed he developed because Midwest negligently failed to inform passengers about the dangers of DVT arising from airline travel.

Midwest moved for summary judgment, and Milwaukee County Circuit Court Judge Mel Flanagan granted the motion, concluding that the claim is preempted by the Federal Aviation Act and, in the alternative, that Midwest had no duty under Wisconsin common law to warn airline passengers about the dangers of DVT.

Miezen appealed, but the court of appeals affirmed in a decision by Judge Joan F. Kessler.

The court began by noting the three methods by which Congress can exercise its preemptive power — express preemption, implied field preemption, and implied conflict preemption — and found the last two applicable.

Express preemption occurs when Congress enacts an express provision for preemption in any congressional act. Under implied field preemption, Congress can implicitly preempt state law if federal law so thoroughly occupies a legislative field as to make reasonable the inference that Congress left no room for the States to supplement it. And implied conflict preemption occurs when state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.

Looking to other jurisdictions for guidance, the court noted that the Third Circuit Court of Appeals found implied federal preemption of the entire field of aviation safety, in Abdullah v. American Airlines, Inc., 181 F.3d 363, 365 (3d Cir. 1999). That court concluded, "the [Federal Aviation Act] and relevant federal regulations establish complete and thorough safety standards for interstate and international air transportation that are not subject to supplementation by, or variation among, jurisdictions." Id. at 367.

That court justified field preemption on the need for one, consistent means of regulating aviation safety.

In addition, two recent cases consider preemption in the context of DVT warnings: Witty v. Delta Air Lines, Inc., 366 F.3d 380 (5th Cir. 2004); and In re Deep Vein Thrombosis Litigation, No. MDL 04-1606 VRW, et al., 2005 WL 591241 (N.D. Cal. Mar. 11, 2005).

In Witty, the Fifth Circuit held that Congress intended to preempt state standards for the warnings that must be given to airline passengers, reasoning, "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." Id. at 384.

The court noted the numerous federal regulations affecting warnings that must be given to airline passengers, such as requiring "no smoking" placards, "fasten seat belt" signs, and specific oral briefings before each flight.

The Fifth Circuit concluded, "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 the federal regulations. In this case, the conflict is more than theoretical, since Witty claims that a DVT warning should have been given, while federal regulations do not require such a warning. 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." Id., at 385.

The court added that, "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." Id.

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The district judge in DVT Litigation agreed with Witty, adding, "’the whole tenor of the [Federal Aviation Act] and its principal purpose is to create and enforce one unified system of flight rules."

The court of appeals also agreed with Witty, reasoning, "If state requirements for announcements to airline passengers were not impliedly preempted by the Federal Aviation Act, each state would be free to require any announcement it wished on all planes arriving in, or departing from, its soil. It is hard to see how the amalgam of potentially conflicting messages promoting competing states’ interests would not stand ‘as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’ Thus, on the narrow topic before us — warnings that are given to airline passengers — we conclude that the Federal Aviation Act impliedly preempts the application of state common-law negligence standards to failure-to-warn claims like that presented here (cites omitted)."

Accordingly, the court affirmed.

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David Ziemer can be reached by email.