We get it. You don’t want to think about it right now. You spent countless hours designing your aircraft and raising capital. Your company is getting closer to, or is already, conducting certification testing. FAA certification of your aircraft, manufacturing, and mass distribution are your ultimate goals. Understandably so. The next frontier of aviation is right there in front of us, with the FAA’s Innovate 28 Plan laying the groundwork for AAM operations in 2028. The FAA seems ready and willing, at a deliberate speed, to create a proper regulatory framework and work with AAM OEMs to get various AAM aircraft certified. 

Inevitably, though, there will be an accident of some kind in the years ahead that causes injuries or death to a person or damage to property. It may not be your company. But it could. We understand that this is hard to hear and difficult to imagine at this stage. Your company must prepare for the risk of an accident resulting in a lawsuit. Obtaining proper liability insurance and retaining competent defense counsel are musts. 

Accidents happen, even with the most extreme safeguards and redundant protection designs in place. New aviation designs and systems in the marketplace come with the risk of plaintiff lawyers claiming that those designs are defective. AAM manufacturers and operators should pause and think about how a liability lawsuit, even without merit, may impact public perception and their bottom line. We want to help you plan and strategize about risks and what a lawsuit may mean, now. It is not too early to do so.

Case study: When is a product defective?

What does it mean for an aviation product to be defective? Your company’s engineers spent thousands of hours designing the aircraft. Manufacturing processes and safeguards are in place. Testing has occurred under various stages of flight, simulations have taken place, and your aircraft passed all test plans. You incorporated numerous warnings and guidance. Redundant safeguards are present to avoid aircraft failures. Everything your company did is believed to have complied with the regulatory framework as contained in the Federal Aviation Regulations (FARs). The FAA approved your design and declared your aircraft as airworthy. Despite all this evidence, your company may still be faced with a product liability lawsuit in the event of an accident. Why is that? Because all this evidence is rarely a complete defense in a product liability lawsuit. 

In California, for example, FARs are essentially viewed as minimum standards. What it means for an advanced aircraft to be “defective” under California law involves an incredibly complex analysis and weighing of various factors as it concerns the aircraft design’s benefit against the product design’s risk. Unfortunately, it is not the lawyers who conduct this analysis and weigh the factors – it is the jury who is charged with such task. While the jury can hear about and consider that an aviation company complied with FARs and that the FAA approved the aircraft, that alone is often not enough to win a product liability lawsuit under California law. There are, of course, additional nuances. 

Defense counsel must build the case with the intent to cause that benefit/risk weighing test to fall in favor of the defendant-manufacturer. Not only that, but defense counsel must work to defeat efforts by adverse counsel to have a more plaintiff-friendly “defect” test applied to the case. Defense counsel must also be able to navigate the various available defenses to the defect claim and understand which party has the burden of proof as to each defense. Such knowledge is necessary when strategizing and building defenses to the theory of defect alleged by the plaintiff. 

So, the short answer to the question of, “when is a product defective”, is: it depends. It depends what law applies to the case. What law will apply will be decided by the judge upon motions filed with the court. When an aircraft is designed in state X, shipped to state Y, and an accident occurs in state Z, it gets a bit tricky. California has a product liability framework which differs from Texas’ framework, which differs from other state laws. Defense counsel must consider if a more favorable product liability law can be applied to the case. Remember, while the FARs and the FAA’s role is important for the jury to hear and consider, the jury will likely be tasked with answering a much different question than “does this aircraft comply with FARs”.

A few considerations if a lawsuit is served upon your company.

  1. Should your company challenge personal jurisdiction? This involves a constitutional/due process analysis as to whether your company should be caused to defend a lawsuit in a given jurisdiction. We will walk you through this.
  2. Is the venue appropriate? It is true that some courts and jury pools are more favorable to a defendant than a plaintiff, and vice versa. Consideration should be given to filing a motion to change the venue – typically, the county in the state where the lawsuit is pending.
  3. What is your defense to the theory of defect? Oftentimes, the plaintiff’s theory of liability will be a moving target. Or there may be two, three or ten different theories of defect all being alleged at the same time. Key to winning the case will be testing the plaintiff’s theories and working to disprove them.
  4. What should you expect in discovery? Once a case gets underway, discovery takes up most of the time. This includes written responses to questions (interrogatories), productions of documents, and depositions of corporate, fact, and expert witnesses. This is where defending a case can get expensive. Defense counsel should have various legal technologies to make discovery as easy and cost-effective as possible, similar to those employed by Reed Smith. And when depositions come around, prepare, prepare, prepare, and prepare your witnesses. A corporate witness deposition, which binds the entire company to the testimony, can oftentimes make or break a case.
  5. Do you need outside experts? Absolutely. An aviation product liability case is expert-driven. Consideration must be given early on in the case as to what outside experts are needed to enhance your defenses. Defense counsel will also rely upon your company’s internal subject matter experts.
  6. Will a lawsuit hurt your brand or reputation? Allegations are just that – allegations. There are various approaches to the media, and we will work with you to pick the one that works best for your company.
  7. What about your company’s proprietary trade secrets and designs – will those be released to the public? There are various ways that defense counsel can ensure that your proprietary trade secrets remain confidential, even in a public lawsuit.

There are many moving parts to a product liability litigation, and for the sake of brevity, we do not mention them all here. By no means do the above questions cover everything that needs to be considered in a case. Trial preparation and strategy, for example, is a topic for another day. But the above list represents a few of the questions that your company’s C-suite executives may have in the first instance. 

Also, perhaps equally important to defending a case are the steps that an aviation company takes after an accident happens, but before suit is filed, particularly as it concerns preserving evidence, legal posturing, and comments to the media. 

Bottom line

The litigious nature of our society requires that your company to be ready to fight back against product liability lawsuits, even if such suits are plus five years away.

So yeah, we get it. Who wants to think about this stuff, particularly now? But, if an accident happens and a liability lawsuit is filed, you should be prepared from the outset.