Holding Aircraft Manufacturers Accountable

Originally published in Trial® (August 2026)

Federal Aviation Administration certification sets baseline requirements, not immunity from liability—and courts are increasingly finding that the certification defense doesn’t fly.

Aviation litigation is a specialized area of law that requires navigating the interplay of international treaties, federal law, and state law. 

In the United States, minimum aircraft design standards are set out in Title 14 of the Code of Federal Regulations, commonly known as the Federal Aviation Regulations (FARs).[1] For aircraft assembled in Europe, the European Union Aviation Safety Agency oversees aircraft certification.[2] Elsewhere, aircraft certification is largely governed by Annex 8 of the International Civil Aviation Organization.[3] Bilateral agreements often provide reciprocal acceptance of certifications for aircraft imported or exported between countries. 

Adding another layer of complexity, aircraft may include major subcomponents—such as engines, avionics, and seats—approved in one country but installed in aircraft certified in another. Knowing the intricacies of these overlapping layers of regulation—and the gaps they create—is essential to seeking justice for clients injured due to faulty manufacturing. 

Minimum Standards, Not Maximum Safety

Although aviation manufacturers often claim that the Federal Aviation Act of 1958 [4] and today’s FARs were meant to wholly preempt aircraft design, they set out only minimum standards for manufacturers and do not preempt state-law products liability standards.[5]

One prominent example from recent aviation history shows why this matters: the Boeing 737 MAX and its Maneuvering Characteristics Augmentation System (MCAS). Boeing added larger engines to the 737, which changed its handling characteristics. To address these changes, Boeing introduced MCAS. Rather than adopt a different platform, such as the Boeing 757, Boeing prioritized maintaining a common type rating and fleet continuity amid pressure from airlines. MCAS monitored a single angle-of-attack sensor, which measures pitch. If that sensor failed and erroneously indicated a nose-high condition, MCAS could override the pilot and push the nose downward.[6] 

The Federal Aviation Administration (FAA) certified the MCAS system, yet it contributed to the crashes of Lion Air Flight 610 off the coast of Java in 2018 and Ethiopian Airlines Flight 302 in Bishoftu, Ethiopia, in 2019.[7] Design-defect claims against Boeing were not preempted, and the resulting litigation led to changes in the MCAS system and sensors.[8] 

State Law Still Matters 

In addition to federal preemption arguments, plaintiff attorneys must contend with state statutes that create presumptions of non-liability for regulatory compliance. Section 82.008 of the Texas Civil Practice and Remedies Code, for example, creates a rebuttable presumption of non-liability for manufacturers that comply with applicable governmental design standards.[9] 

Similar statutes exist in other jurisdictions, although they vary in scope and application. Florida law, for example, creates a rebuttable presumption that a product is not defective when it complies with federal or state regulations relevant to the event that caused the harm.[10] In Arkansas, if a product complies with federal or state statutes that set or require its design, that compliance is considered evidence that the product is not unreasonably dangerous.[11] 

At first glance, Texas’s §82.008 may appear to offer aircraft manufacturers a powerful defense, given that all aircraft must meet federal certification standards. But that assumption does not hold up under closer scrutiny. Courts require more than generalized compliance. The manufacturer must show that a specific regulation governs the very risk that allegedly caused the injury.[12] 

Given that two major U.S. carriers—American Airlines and Southwest Airlines—are headquartered in Texas and operate substantial fleets of 737 aircraft, the implications of §82.008 extend to airline operators, insurers, flight crews, and passengers. A closer look at §82.008, the FARs, and relevant case law shows that FAA certification does not trigger a presumption of non-liability and could serve as a roadmap to overcoming similar statutes in other jurisdictions. 

Who Is Doing the Certifying? 

While the FARs have expanded in volume over the past nearly 100 years, many provisions remain high level and performance-based rather than prescriptive. The 737 MAX crashes highlighted major issues: In practice, manufacturers perform much of the certification work themselves. 

Under the Organization Delegation Authorization (ODA) program, formally adopted in 2005, manufacturers may conduct inspections and testing and act on the FAA’s behalf in determining whether a design complies with minimum regulatory standards.[13] The FAA has long delegated aspects of certification, but ODA expanded that role significantly. Once issued, a type certificate remains valid indefinitely, even as technology and safety expectations evolve. As a result, aircraft still in production today may rely on certification frameworks developed decades ago. 

Government oversight bodies—including congressional committees, the U.S. Department of Transportation Office of Inspector General, the U.S. Government Accountability Office, and FAA employee unions—have repeatedly raised concerns about whether the FAA has sufficient resources and expertise to oversee delegated certification effectively.[14] 

In practice, the FAA continues to rely on delegated authority because it has a shortage of inspectors with the requisite expertise to oversee delegation effectively. 

Lock It Down in Depos 

These dynamics also shape deposition strategy. In depositions, press defense witnesses to acknowledge a key point: that the FARs set minimum standards, not optimal or exhaustive ones. When examining manufacturing or engineering representatives, it is often useful to introduce the relevant FAA approval of the component as an exhibit and establish who actually performed the work. Determine whether the person was an FAA employee or an employee of the manufacturer acting under delegated authority. If the witness is a company employee, research their role, training, and reliance on internal data. 

Designate these witnesses as corporate representatives under Federal Rule of Civil Procedure 30(b)(6) to ensure that their testimony binds the company.[15] From there, establish that the witness is paid by the manufacturer, relies on data provided by the manufacturer, and does not conduct independent analysis to ensure the safety of the component. Also establish that the deponent doesn’t have the training or experience to design and test the product. Ultimately, the witness is exercising authority delegated by the FAA—not acting as an independent regulator. 

The Compliance Defense 

Manufacturers invoking statutes like §82.008 often take inconsistent positions. On one hand, they contend that FAA certification creates a presumption of non-liability because the aircraft complies with mandatory safety standards. On the other, they characterize certification as a form of premarket approval reflecting full governmental consideration of the aircraft’s risks and benefits. In reality, much of that approval depends on the manufacturer’s own analysis within a framework of broadly defined minimum standards. 

Texas courts have repeatedly rejected aircraft manufacturers’ attempts to rely on §82.008 without a clear connection between a specific regulation and the risk at issue.[16] It is not enough for a manufacturer to identify a general regulatory framework and assert compliance of the specific regulation at issue. The statute applies only when a manufacturer demonstrates that a particular standard governs the alleged defect. 

For example, a Texas appellate court rejected a presumption of non-liability in a case involving a Bell 407 helicopter windshield, noting the absence of any federal standard that addresses bird-strike resistance for that aircraft category.[17] 

Similarly, in litigation arising from a 2019 crash of a King Air Model B300—a twin-engine corporate aircraft—that killed all 10 aboard, the manufacturer argued that its type certification established compliance with all applicable regulations.[18] The manufacturer relied in part on a type certification originally issued decades earlier, and key design features remained unchanged despite a string of incidents. The trial court rejected the manufacturer’s attempt to invoke §82.008, allowing the claims to proceed.[19] 

Aviation Rules Are Different 

Although manufacturers frequently rely on regulatory compliance defenses to overcome §82.008 challenges, those defenses are often difficult to sustain in aviation cases. The FARs are broadly framed minimum standards and typically do not prescribe specific design solutions. That stands in contrast to more detailed regulatory regimes, such as the Federal Motor Vehicle Safety Standards promulgated by the National Highway Traffic Safety Administration (NHTSA). 

The Texas Supreme Court’s decision in American Honda Motor Co., Inc. v. Milburn illustrates the difference.[20] There, the court considered a specific restraint system authorized by NHTSA standards following a cost-benefit analysis.[21] The agency concluded that a specific detachable seat belt was sufficiently safe for use in some seating positions. There was no dispute that the manufacturer used a design expressly permitted by the regulation. Aviation regulations rarely operate at that level of specificity. 

The FARs generally do not mandate particular design choices or reflect component-specific cost-benefit determinations. That distinction weakens the argument that compliance with FAA certification should trigger a presumption of non-liability under statutes like §82.008. 

Even when a presumption applies based on the aircraft’s certification, plaintiffs can often rebut it by showing a material change in technology or the emergence of new data regarding risks and injuries.[22] Given the long life cycle of aircraft design and certification, such developments are common. 

Courts have also questioned whether FAA certification constitutes the kind of premarket approval contemplated by statutory defenses. The certification process does not involve exhaustive evaluation of all risks, and the FARs themselves provide non-exhaustive, performance-based standards that leave significant discretion to manufacturers.[23] 

The Third Circuit’s decision in Sikkelee v. Precision Airmotive Corp. provides a logical explanation for why §82.008 cannot apply to aircraft certification. It emphasized that FAA certification establishes only baseline requirements, not comprehensive manufacturing standards, and does not displace traditional state-law remedies.[24] 

Certification Is a Floor 

In sum, although the FARs and statutes like §82.008 may appear to provide aircraft manufacturers with a defense based on regulatory compliance, key features of the certification system undermine that argument. The FARs establish minimum standards, not prescriptive mandates. FAA certification often relies on delegated authority and manufacturer analysis. Courts increasingly require a direct link between a specific regulation and the alleged defect. 

High-profile aviation crashes have repeatedly shown that compliance with minimum standards does not eliminate the risk of injury or death. Unlike more prescriptive regulations, the FARs do not provide a basis for insulating manufacturers from liability simply because a component or aircraft received FAA certification. FARs differ from other governmental standards, such as those issued by NHTSA, and do not shield aircraft manufacturers from liability merely because an aircraft and its components are FAA certified. 

 

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