May 21, 2012 Articles

Denial of Cert in Cases with Federal Preemption Defenses

By Deborah A. Elsasser

The U.S. Supreme Court recently denied review in two aviation-related cases addressing federal preemption defenses. The defenses raised by these petitions for certiorari dealt with the preemption of state-law-based tort claims by the government-contractor defense and the aircraft owner/lessor immunity statute, 49 U.S.C. § 44112. These cases did not involve the issue of preemption under the Federal Aviation Act, which is the subject of ongoing debate and a profound circuit split.

In Getz v. The Boeing Co., 80 USLW 3476, 2012 US LEXIS 1572 (Feb. 21, 2012), the Supreme Court declined to review a ruling by the Ninth Circuit Court of Appeals that the plaintiffs’ design-defect and failure-to-warn claims were preempted by the government-contractor defense as enunciated by the Supreme Court in 1988 in the case of Boyle v. United Technologies Corp., 487 U.S. 500 (1988). The Ninth Circuit allowed the application of the defense to preempt design-defect and failure-to-warn claims where the aircraft was originally designed by a foreign company for a foreign government.

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