Vol. 3 No. 2, Spring 2012; Grounding the Preemptive Effect of the Federal Aviation Act: A Look at the Third Circuit’s Recently Modified Field Preemption Ruling in Elassaad v. Independence Air, Inc. and the Effect of Wyeth v. Levine

Whether claims of negligence or product liability are preempted by the Federal Aviation Act currently splits the federal circuits. Despite over sixty years of federal control and significant changes to the statutory scheme, there is no consensus among courts as to what extent the Federal Aviation Act preempts state-based standards of care. Through interpretation of the Federal Aviation Act, most circuits have attempted to delineate how, why, and to what extent claims are preempted, but have reached markedly different results. Instead of clarifying the issue, the Supreme Court further complicated the matter in a recent decision which could pose implications on current interpretations. The Third Circuit recently modified its decade old interpretation of the Act in Elassaad v. Independence Air, Inc. Given the new interpretation and its likely effect on the other circuits, the focus of the article is to address whether the modified ruling is reconcilable with the Supreme Court’s recent preemption decision in Wyeth v. Levine. By discussing other Circuit’s interpretation of the Federal Aviation Act, most notably, the Ninth Circuit, as well as other statutory and regulatory schemes, the author concludes that the ill-defined, contextual interpretation of the Federal Aviation Act by the Third Circuit is improper. Instead, the claim-by-claim approach employed by the Ninth Circuit, is proper because it is more in line with congressional intent and does not change depending on the state of the aircraft or where the plaintiff pleads