This should apply to airframe manufacturers too

Ray Andraka wrote:
Jim Stewart wrote:


I don't think you can take it that far. Some people
*need* to have pacemakers. If all the pacemaker
companies are sued out of existence, many more people
will die. Based on that, perhaps a pacemaker company
deserves an extra level of protection in order to
keep the greater number of people alive. I don't
think the argument follows for aviation.

Same could be said for aicraft component manufacturers. For example the
carburetor on my Cherokee Six was manufactured by Precision Airmotive,
which is the sole source for parts for that carburetor. Precision also
made the carburetors for the majority of the piston powered aircraft in
the fleet. They got sued last fall for an outrageous sum and abruptly
pulled out of the aircraft carburetor business because they could no
longer obtain liability insurance. The tight federal regulation over
aircraft has prevented any significant improvements to the pre-WWII
carburetor design used on these aircraft. The design is 80 years old,
has been installed on tens of thousands of aircraft, and is proven with
millions of hours of flight time. Without anybody making spare parts,
the likelihood of failures will increase as existing parts are repaired
instead of being replaced, exposing more people to potential crashes.
How is this materially different than your example with the pacemaker
company?

People won't die if they can't fly their Cherokee Six.

On Thu, 21 Feb 2008 16:09:19 -0500, Ray Andraka wrote:

From CNN:
The U.S. Supreme Court, in an 8-1 ruling Wednesday, said federal
medical-device regulations prevent patients from bringing state
product-liability lawsuits unless a medical-device company violated U.S.
Food and Drug Administration regulations.

"This decision shows that the extensive degree and nature of FDA
regulation necessarily means that its scientific decisions may not be
second-guessed by unscientific state juries," said Daniel Troy, a
partner at Sidney Austin LLP and a former FDA legal counsel.

It would seem to me that the manufacturers of certificated aircraft
could argue for a similar protection since the aircraft must meet
stringent tests and design parameters in order to recieve a type
certificate from the FAA. Heck, they could even use this ruling in favor
of Medtronic to support their case. Piper, Cessna, Lycoming, Textron,
anybody out there listening?

As I understand the case, it does not give any kind of broad-based immunity
to the majority of medical device manufacturers.

It provides some immunity if the devices were certified under a particular
law, and many are certified under a different, more lenient process (and
the SC ruled in 1996 that this more lenient process was NOT protected).

It also does not preclude cases brought because the device was not
manufactured in accordance with its approval.

Furthermore, the ruling hinges on an interpretation of the relevant law
which, according to both the Senator who sponsored the legislation
(Kennedy); and a house member who was on the relevant house committee at
the time (Waxman) was contrary to what was intended.

If the Democrats win this next election, rewriting of that law would not be
surprising.

More he

http://www.nytimes.com/2008/02/21/wa...th&oref=slogin

or http://tinyurl.com/2t2l7u

(The NY Times requires a free registration to read this; I've never been
bothered by SPAM from their site).
--ron

Jim Stewart wrote:

Ray Andraka wrote:

Jim Stewart wrote:


I don't think you can take it that far. Some people
*need* to have pacemakers. If all the pacemaker
companies are sued out of existence, many more people
will die. Based on that, perhaps a pacemaker company
deserves an extra level of protection in order to
keep the greater number of people alive. I don't
think the argument follows for aviation.


Same could be said for aicraft component manufacturers. For example
the carburetor on my Cherokee Six was manufactured by Precision
Airmotive, which is the sole source for parts for that carburetor.
Precision also made the carburetors for the majority of the piston
powered aircraft in the fleet. They got sued last fall for an
outrageous sum and abruptly pulled out of the aircraft carburetor
business because they could no longer obtain liability insurance. The
tight federal regulation over aircraft has prevented any significant
improvements to the pre-WWII carburetor design used on these aircraft.
The design is 80 years old, has been installed on tens of thousands of
aircraft, and is proven with millions of hours of flight time.
Without anybody making spare parts, the likelihood of failures will
increase as existing parts are repaired instead of being replaced,
exposing more people to potential crashes. How is this materially
different than your example with the pacemaker company?


People won't die if they can't fly their Cherokee Six.


No perhaps not, but an industry that set the US apart from the rest of
the world is slowly getting buried between litigation and federal
regulation. Plus the non-availability of new parts due means parts that
previously would have been replaced with new are going to be repaired
instead, and that will lead to more failures, which will likely result
in loss of life. We're talking about the majority of the piston fleet here.

OK, so I am not a lawyer, nor do I play one on TV. The fact is,
litigation and liability is literally choking this once vibrant industry
to death. I saw this article today, and figured it would be worth
pondering. I didn't expect to be pounced on like I have been,
especially by other pilots and aviation enthusiasts. Oh well.

Jim Stewart wrote:

Ray Andraka wrote:

Jim Stewart wrote:


I don't think you can take it that far. Some people
*need* to have pacemakers. If all the pacemaker
companies are sued out of existence, many more people
will die. Based on that, perhaps a pacemaker company
deserves an extra level of protection in order to
keep the greater number of people alive. I don't
think the argument follows for aviation.


Same could be said for aicraft component manufacturers. For example
the carburetor on my Cherokee Six was manufactured by Precision
Airmotive, which is the sole source for parts for that carburetor.
Precision also made the carburetors for the majority of the piston
powered aircraft in the fleet. They got sued last fall for an
outrageous sum and abruptly pulled out of the aircraft carburetor
business because they could no longer obtain liability insurance. The
tight federal regulation over aircraft has prevented any significant
improvements to the pre-WWII carburetor design used on these aircraft.
The design is 80 years old, has been installed on tens of thousands of
aircraft, and is proven with millions of hours of flight time.
Without anybody making spare parts, the likelihood of failures will
increase as existing parts are repaired instead of being replaced,
exposing more people to potential crashes. How is this materially
different than your example with the pacemaker company?


People won't die if they can't fly their Cherokee Six.


No perhaps not, but people aren't going to die if they can't get their
breast implants either. (NY Times said: "Makers of medical devices like
implantable defibrillators or breast implants are immune from liability
for personal injuries as long as the Food and Drug Administration
approved the device before it was marketed and it meets the agency’s
specifications, the Supreme Court ruled on Wednesday.")

The fact is, an industry that set the US apart from the rest of the
world is slowly getting buried between litigation and federal
regulation. The non-availability of new parts due means parts that
previously would have been replaced with new are going to be repaired
instead, and that will lead to more failures, which will likely result
in loss of life. We're talking about the majority of the piston fleet here.

Ron Rosenfeld wrote:

On Thu, 21 Feb 2008 16:09:19 -0500, Ray Andraka wrote:


From CNN:
The U.S. Supreme Court, in an 8-1 ruling Wednesday, said federal
medical-device regulations prevent patients from bringing state
product-liability lawsuits unless a medical-device company violated U.S.
Food and Drug Administration regulations.

"This decision shows that the extensive degree and nature of FDA
regulation necessarily means that its scientific decisions may not be
second-guessed by unscientific state juries," said Daniel Troy, a
partner at Sidney Austin LLP and a former FDA legal counsel.

It would seem to me that the manufacturers of certificated aircraft
could argue for a similar protection since the aircraft must meet
stringent tests and design parameters in order to recieve a type
certificate from the FAA. Heck, they could even use this ruling in favor
of Medtronic to support their case. Piper, Cessna, Lycoming, Textron,
anybody out there listening?


As I understand the case, it does not give any kind of broad-based immunity
to the majority of medical device manufacturers.

It provides some immunity if the devices were certified under a particular
law, and many are certified under a different, more lenient process (and
the SC ruled in 1996 that this more lenient process was NOT protected).

It also does not preclude cases brought because the device was not
manufactured in accordance with its approval.

Furthermore, the ruling hinges on an interpretation of the relevant law
which, according to both the Senator who sponsored the legislation
(Kennedy); and a house member who was on the relevant house committee at
the time (Waxman) was contrary to what was intended.

If the Democrats win this next election, rewriting of that law would not be
surprising.

More he

http://www.nytimes.com/2008/02/21/wa...th&oref=slogin

or http://tinyurl.com/2t2l7u

(The NY Times requires a free registration to read this; I've never been
bothered by SPAM from their site).
--ron


Correct, but one could argue that type certification is a pre-market
approval process that parallels the medical pre-market approval process
specifically covered by this decision.

Anyway, I saw the one paragraph summary of this decision in this
morning's paper and thought why couldn't this be applied to aviation.
The regulations regarding equipment manufacture are about as stringent,
and the liability is choking aviation even more than it is the medical
device makers. I'm not a lawyer, not even really good at debate. It
just seemed like something worthy of some thought and maybe some debate.
I'm kind of surprised that nobody jumped in saying yeah, good idea or
even might have some merit.

On Thu, 21 Feb 2008 22:37:13 -0500, Ray Andraka wrote:

Correct, but one could argue that type certification is a pre-market
approval process that parallels the medical pre-market approval process
specifically covered by this decision.

Anyway, I saw the one paragraph summary of this decision in this
morning's paper and thought why couldn't this be applied to aviation.
The regulations regarding equipment manufacture are about as stringent,
and the liability is choking aviation even more than it is the medical
device makers. I'm not a lawyer, not even really good at debate. It
just seemed like something worthy of some thought and maybe some debate.
I'm kind of surprised that nobody jumped in saying yeah, good idea or
even might have some merit.

I think some of the issues include the fact that there is already a (is it
seventeen?) year limit on liability for manufacturers.

Another issue is that most of our lawmakers are lawyers ng.

Also, it seems to me that the SC interpretation of the law in question may
not be in accord with the original intent of Congress (even though they are
supposed to take that into account).
--ron

Well, we can debate this till the cows come home...

As a person in business most of my life, the threat of litigation is
like a constant dread just hanging over you... You do not have to do
anything wrong, just the simple fact that someone is angry at the
world and focuses on you will bring a swarm of lawyers like hornets...
And even if you prevail in the courts and win, the ruinous costs, the
smear on your reputation, and the joy it takes out of your life, makes
you feel like you lost... As Ray Donovan asked, "What office do I go
to get my reputation back?"

I do not want to live under any other system, yet our courts are out
of control, the trial lawyers are like pirhana sniffing blood money
- call Lee Free, etc...
I strongly believe that we need to enact a strict 'loser pays' law, no
exceptions, at the federal level to apply to all lawsuits...

denny

On Feb 21, 9:07 pm, Ray Andraka wrote:
Jim Stewart wrote:
I don't think you can take it that far. Some people
*need* to have pacemakers. If all the pacemaker
companies are sued out of existence, many more people
will die. Based on that, perhaps a pacemaker company
deserves an extra level of protection in order to
keep the greater number of people alive. I don't
think the argument follows for aviation.

Same could be said for aicraft component manufacturers. For example the
carburetor on my Cherokee Six was manufactured by Precision Airmotive,
which is the sole source for parts for that carburetor. Precision also
made the carburetors for the majority of the piston powered aircraft in
the fleet. They got sued last fall for an outrageous sum and abruptly
pulled out of the aircraft carburetor business because they could no
longer obtain liability insurance. The tight federal regulation over
aircraft has prevented any significant improvements to the pre-WWII
carburetor design used on these aircraft. The design is 80 years old,
has been installed on tens of thousands of aircraft, and is proven with
millions of hours of flight time. Without anybody making spare parts,
the likelihood of failures will increase as existing parts are repaired
instead of being replaced, exposing more people to potential crashes.
How is this materially different than your example with the pacemaker
company?

There is a specific provision in federal law that the Supreme Court
says
bars state lawsuits. It seems this was the intent of Congress and
they
wrote it into the law. See
http://www.scotusblog.com/wp/orders-...l-v-medtronic/

There is no such provision in the laws regarding the FAA. Maybe there
should
be, but it does not currently exist. Instead the Aviation
Revitalization Act places
different limits on aviation lawsuits.

Therefore, it seems in this case the Supreme Court was correct. If
you want to
change things, write your congressman.

Actually, the change I would make would be to allow FAA accident
report conclusions
into court. Right now there is a law baring the use of such documents
in
court.

-Charles Talleyrand

Charles Talleyrand wrote:

On Feb 21, 9:07 pm, Ray Andraka wrote:

Jim Stewart wrote:

I don't think you can take it that far. Some people
*need* to have pacemakers. If all the pacemaker
companies are sued out of existence, many more people
will die. Based on that, perhaps a pacemaker company
deserves an extra level of protection in order to
keep the greater number of people alive. I don't
think the argument follows for aviation.

Same could be said for aicraft component manufacturers. For example the
carburetor on my Cherokee Six was manufactured by Precision Airmotive,
which is the sole source for parts for that carburetor. Precision also
made the carburetors for the majority of the piston powered aircraft in
the fleet. They got sued last fall for an outrageous sum and abruptly
pulled out of the aircraft carburetor business because they could no
longer obtain liability insurance. The tight federal regulation over
aircraft has prevented any significant improvements to the pre-WWII
carburetor design used on these aircraft. The design is 80 years old,
has been installed on tens of thousands of aircraft, and is proven with
millions of hours of flight time. Without anybody making spare parts,
the likelihood of failures will increase as existing parts are repaired
instead of being replaced, exposing more people to potential crashes.
How is this materially different than your example with the pacemaker
company?


There is a specific provision in federal law that the Supreme Court
says
bars state lawsuits. It seems this was the intent of Congress and
they
wrote it into the law. See
http://www.scotusblog.com/wp/orders-...l-v-medtronic/

There is no such provision in the laws regarding the FAA. Maybe there
should
be, but it does not currently exist. Instead the Aviation
Revitalization Act places
different limits on aviation lawsuits.

Therefore, it seems in this case the Supreme Court was correct. If
you want to
change things, write your congressman.

Actually, the change I would make would be to allow FAA accident
report conclusions
into court. Right now there is a law baring the use of such documents
in
court.

-Charles Talleyrand


Unfortunately, my congressman is a dolt and has zero interest in general
aviation. I get better results ****ing into the wind. Not that I
haven't tried with issues that were already on the floor like the user
fee debacle.

I strongly believe that we need to enact a strict 'loser pays' law, no
exceptions, at the federal level to apply to all lawsuits...



You are suggesting we adopt some version of the English system. I
completely agree. However, the whiny liberals will quickly point out
that such a system presents huge barriers to those who have been wronged
and justly come forward to attempt to recover their damages. I say its a
crock.

What a "Loser Pays" system appears to do quite well is to weed out the
"Legal Lottery" contingency cases.

My twist on this new proposed system is that it requires trail lawyers
to pay 1/3 of the costs of cases they lose (since most take 1/3 of the
winnings).

Unfortunately, when a weeping mom and the kids do lose a frivolous case
that should have never been brought to court, it is likely that she will
never be able to pay up the 2/3s of the trial's cost. Who is going to go
after them to collect?

If the American public was REALLY sick and tired of this, it would be
changed. The average Bubba thinks the current game is just fine,
especially when he trips over his own feet in the local Wall-Mart and
teams up with the neighborhood ambulance chaser in an attempt to cash in.

Opinions vary... a lot
Mike