decision are the defendants are the defendants that are before us now out as to the plaintiffs or are there some further proceedings and the district court that you anticipate well in so far as these defendants are also defendants in the warsaw cases which are pending also on appeal now those cases we would anticipate would still continuing but is there real finale th ruled and found final the judgments in the domestic tort law cases he subsequently found for the defendants and entered final judgment in the warsaw cases so were you to find that judge walker decision is correct as to the domestic law claims as to the domestic likes of the trip as far as i understand absent reconsideration that would be the end of those claims that would be the end of the proposition that for example continental ok because this concerns common law torts which are traditionally within the purview of states and the preemption doctrine in the united states recognizes that the traditional police powers remain within the purview of the states there's a presumption against preemption of these claims this court has held for example in the charas case which we cite where plaintiffs brought various personal injury claims including negligence that the presumption against preemption applied in this case indeed the plaintiffs bring claims for negligence of breach of duty of a common carrier and for the same reason that presumption applies here now that a presumption against preemption was also applied by this court in the sky citing case that did not involve personal injury but again to deal with straights t kind of local police powers laws which are entitled to the presumption against preemption as opposed to was directed at the field subject to federal regulation which aren't so in the case of two local ordinances where an issue honolulu had an ordinance prohibiting generally the display of advertising signs off the site of the advertisers business the court since that was a general regulation about advertising the court held the presumption against preemption appl that law the other one issue in that case was not within the traditional purview of the states that was the law prohibiting aerial display of signs none the less interesting lee and often sky sign the court held that neither of those laws even the latter law which was not entitle to the presumption against preemption the letter law also was not preempted and what's particularly interesting for this case in the sky sign holding is it w acknowledged that the ordinance prohibiting the display of aerial signs was in part a safety ordinance it was intended to avoid unnecessary diversion of people on the ground to the sky i believe it was driver safety is not fully occupied is not fully preempted and sky sign went on to explain that the density and volume of regulation in a field is not sufficient to establish preemption sprite small is useful for analyzing this case as well because spy school was a case involving the failure of both manufacturer to provide a propeller cart the plaintiffs brought suit on behalf of their deceased who was killed by the unguarded propeller in that case the defendants claimed the lawsuit was preempted the claims were under a common law tort and what they argued was that since the coast guard had been given plenary authority by congress under the federal safe boating act to regulate voting indeed to regulate the design of boats the kind of equipment they had to carry the kind of warning devices they had to use very comprehensive and indeed the coast guard exercise that authority in each shoot regulations covering an enormous range of boating activities none the less the court held the  the lawsuit was not reacted and what was interesting was in that case the coast guard actually had considered enforcing a rule requiring propeller guards and they expressly elected not to require it nonetheless the plaintiffs proceeded on the claim and what the supreme court held was the decision of the coast guard not to require the propellor card showed no conflict with state law and in fact justice royer who wrote the guy or decision garvey honda that was the automotive case where the plaintiffs claimed that the failure to include airbags was negligence and actionable interestingly enough in that case although the court did find preemption and it did hold for the defendants it did not find field preemption in that case prior pointed out there which does not exist here was that the department of transportation had carefully analyzed the various options of whether to have airbags whether to not have their vaccine and indeed had come up with a specific program in which over time over the years airbags would be introduced to cars and it was concerned the department of transportation showed at the time it passed the regulation and in briefing that it was concerned that requiring airbags too quickly would actually interfere with its safety objectives in this case we have nothing of the sort there's no comment by congress there's no aviation administration now the district court and defendants have argued in addition to field preemption there's also the actual conflict can i ask you to address  that it correctly reflects u s supreme court decisions going back to silkwood which was the case that held punitive damages were authorized even though the atomic energy act fully occupied the field going all the way up to the sprite that the gist of those cases is that common law tort are not going to be presumptively preempted absent a clear statement by the congress or the regulatory agency that it doesn't want any interference or absent as in the entire case some clear conflict between the state law in the issue and a federal objective or a federal regulation of identifie field was preempted and fourteen see if our ninety one point thirteen a no character can operate a plane in a way that's careless or reckless cause injury or death that's correct i don't know that they said that regulation essentially is the standard that preamps vary of state standards well i think in order to accept i remember that your honor in order to accept the proposition though and to reconcile it with sprite small and hillsborough and even the guy or case i think one has to go a step further and not simply show that there's a federal regulation that also fit and i  d damages that someone's hurt is there some reason to believe that f a a objectives are congressional objectives are obstructed in that case if you have some more rigorous standards you know on a higher level of care d t when you're flying as when you're sitting in a seated position for any length of time and there's prophylactic measures for it one is you may not want to fly to you can hydrate yourself three you can exercise your legs for you can wear compression stockings all of which there's good reason to believe are strong prophylactics for d d t i don't understand i guess i'm not that there's a hazard involved it would be given possibly in advertising as in the stippling case where the us supreme court distinguish what's on the package versus the kind of public service announcements and other media through which a warning could be deliver it could be in the on flight magazine as for example console so i did the war saw a case of rodriguez air new zealand and it turned out in that case in fact a warning for d v was included in it apparently wasn't adequate for that particular p if it was on the in flight magazine then of course you could have on board or all warnings you could have warnings on the safety car the f a a regulations actually allow and account for airlines supplementing the warnings that are mandated by the f follow that the world has to warn everybody about everything i mean wouldn't there have to be a warning that airplanes crash some privileged position with respect to this knowledge that the consumer of the service and in the case of their pink plane crashes i don't think that's really the case i think with d d t especially since with the twelve yes we've sort of they have knowledge experiencing a period of turbulence and i'm turning on the seatbelt sign and the regulation that says that you have to be in your seat well your honor that that regulates i don't see how this functions well well you're right if it were the case that during flights captains so for the entire duration of the flight you must be seated that would be a problem but there are several reasons i just flew on one of those two days ago ok no getting up keep your seat belts on the entire flight well your honor i would suggest that the stage that at least it's a fact question whether on most or all flights that's the case i'd also point out there are several other prophylactics that do not involve walking around for example being  advance that you may not want to fly at all this is a hazard you may not want to run the risk of you can wear compression stockings and thereby not stand up that you can do exercise in your seats as many airlines especially foreign airlines passengers none of this involves walking around and then of course there's at least we have to admit the factual possibility that indeed often you can walk around in fact people use bathrooms often on airplanes once the statistical probability of on an airplane i believe the matter we submitted in this record estimated that one in a thousand people gets a blood clot but i caution when you get the blood clot you don't necessarily develop all the symptoms so how often do you actually end up like our clients in the hospital i honestly can't answer that right now good question getting back to get back to you know what is the appropriate test and there's something  to reach into the navigable airspace it is a much more broader population have nothing to do with whether they preempted airline safety oh well your honor actually the holding of the case is that the whole field isn't preempted and the reason i believe that to be the case is one of the ordinances that the sky site court held not to be preempted was the ordinance prohibiting the display of area signs right court found that that ordinance was intended among other things as a safety or things the court then held notwithstanding the fact that this is not a traditional area of state regulation not withstanding that this from congress an intent to fully occupied that field well the authority to regulate the navigable airspace i don't see where it talks about aviation safety  intended to occupy this area they absolutely could have also if it wasn't aviation safety then it would not have been appropriate for the f a a to to have the possibility to regulate long no they said that they couldn't that the the court i'm sorry i don't have it on his right in front of me tell me what that case had to do with airplane airline flying safety it had to do with the safe use of airplanes in relation to the public just like safety because the court expression he said this was a matter within the purview of the f a a should the f a a have chosen to say you know you can or cannot have signs because they distract people on the ground that was something t to causes of action so to speak or or we killed two factual problems one was the failure to warn which we fell within breach of duty reach of warranty claim of course the district court also followed the way the case will be said that you cannot claim inadequate leg room because its effect will be to require fewer seats on the airplane and that will raise and thereby you run a fall against the airline deregulation act which prohibited states from regulating fares routes and services now the problem we see with these reasoning and district courts reliance on it is when he ever ties their fares so the court decided the case on two grounds one was i think the intuitively obvious one which is that that's a state regulation that directly concerns very literally how you can talk about them but then the court developed an alternative holding it cited the language the words related to the preemption statute and they said well this stance this regulation is also preempted because it relates to fears and the reason relates to fares is because ultimately it will probably increase costs to airlines and that will cause them to raise their fares now the problem with that and i should add the court specifically said the savings clause in the regulate advertising frequent flyer miles was preempted the contract claims were not preempted and the court specifically said that the savings clause is applicable this court in  case talking about the configuration of leg room and we're still on twelve to six so we don't even know whether altering the configuration of like rome is going to affect the number of seats let alone cost or if they are so for that reason alone it's inappropriate the judgement by the district court you can't go back and say ok we've got these other theories now on the domestic claims i don't think anyone's going to take a serious look seriously if we try that no this would be the you can't it's oh you're saying it's over the message claims i believe that you're saying that the cause of action in the complaint or delineated differently for domestic claims and international claims the international claims are under what the warsaw convention that's right and engines are in fact those have been dismissed as well  may please the court bill boyce on behalf of the aca lees i'd like to begin by making sure that i make very very clear the relief that we're seeking and what what would happen we want to ask the court to affirm the district court's dismissal there is standard for the third circuit we would remain to allow them leave to amend to plead a violation of fourteen c of our ninety one point thirteen and no sir that would not be an appropriate resolution when the plaintiffs have to specifically disclaimed in their briefing in this court any reliance on a federal standard and i would direct the court to the plaintiff's opening brief that page thirty eight here there is no controlling standard concerning p v t warnings i would also court to the reply brief page eighteen these claims are not predicated on federal law i would also note for the court that in the plaintiff's opposition in the district court to dismiss all that there is absolutely no in vocation fourteen c f r ninety one point one three a which do a lot of characterized as sort of the the the gap filler or the catch all safety provision and i i wan stress this while addressing first off implied preemption a lot of the argument is if you said this morning a lot of the argument that his business has been presented in the briefing is the pla s attacking arguments we are not making and attacking holdings the district court did not make and by that i want to focus in on what exactly is the field that we're talking about here th field of air safety field that i think we're appropriately talking about here today is the field of passenger safety warnings on commercial airliners the court below our arguments have been framed much more narrowly and they tracked with this circuit did in wiki when he took great pains to say we the fifth circuit in whittier are making a narrow ruling and that is the ruling that we advocated to the chief judge walker  believe that that's the ruling that he's made so i just want to highlight that in order to affirm the ruling below this court does not need to hold that the entire field of air safety is preempted in the court does not need to hold that state common law remedies are preemptive what judge walker did and what we did is to say that before you get to any question of whether or not a state emphasize that as strongly as i can and i think that demonstrates why the contention that there is somehow a conflict or a tension between what we're advocating here what the defense is advocating what judge walker held and and sky sign for example is just overstated it's really not an issue you set up this field is a very narrow field passenger safety warnings on commercial airlines how do we know that that's an appropriate limitation on a concept a field in a case like this i think you could say passion or warnings from people nine jones on commercial airlines i mean you're trying to ratchet this down and sort of create a very limited area is that appropriate i think it   i think each of these preemption areas is extremely fact specific and the field sometimes gets defined narrowly sometimes gets defined more broadly it really comes down to two things i would submit judge trial number one what is the governing regulation that you're talking about that you're working under here number two what are the regulations that go with that and i think this ties into the references that sky sign made regulate or impose a noise ordinance that would have affect the timing of any it's not going to get there getting back to the field why should we say the field is that they preempted are warnings that are given while you're in the airplane like for example getting on the plane yes they last night to come down here there's a big sign right as you get on the plane on the last piece of the jetway that says that this plane or something to agree that you know uses chemicals that could cause cancer you know the song you see every every place and you are saying gee there's a sign you know this is just a volunteer voluntarily put that sign up there the airline said gee maybe we ought to tell him that there are things in this plane that that could cause cancer but the point that you're making is if you look at the regulations it talks about what they have to tell about seat belts about the oxygen mask the lavatory smoking etc it doesn't say anything about what you should tell the  the air travelers before they get on an airplane and i'll give you this example say that the airplanes rule is that if you if we have a problem with the  to take the oxygen out of the compartment where people store their pets you know where people put their pets and so therefore the pets will die shouldn't they put a warning out saying you know if you take your pet be aware that if there's problems even to a small degree in the cabin where we're going to turn the oxygen off in the compartment and you would say now preempted because all they have to do is to seat belts oxygen no smoking and those are all things that occur on a plane  or as george carlin would say in a plane those are all things that occur in a plane and what you're talking about is you want to say the field is all warnings but there's nothing else in the regulations that talks about warnings when you buy a ticket or else was elsewhere well let me try to answer that question and in a couple respects and highlight a couple things number one i think a good starting place is section forty four seven zero one which is the grounding then come down subsection five regulations and minimum standards for other practices methods and procedures the administrator finds necessary for safety in air commerce and national security so the starting point is that the statute itself directs for example fourteen c f r one twenty one point three one seven is the regulation that's framed in mandatory terms passenger information requirements  s those are all in plain in preflight in plain requirements nothing about general terms like beef when you buy a ticket or on a website or anything like that one twenty one point three one seven i think is about is supplementation with respect to specific things such as putting the tray up or use of electronic devices during flight so that the point being and i want to make sure that i'm trying to answer your question appropriately is that i think when you marry the broad statutory command with the mandatory nature of the regulations that flow from that stash or you command about what the warnings are supposed to be that's been a fairly elusive goal from the defense perspective in terms of trying to get some specificity about what exactly should be warned about and i know that the chief judge schroeder's questions were trying to do it on that as actual aircraft environment but when you get right down to specific pleadings for example this is the van arsdale case appearing at the age vying three of the excerpts of record page six one in that case planners are saying specifically hypotheticals here but i do want to make sure that we remain grounded in and focused on the actual pleadings here and what's being contemplated here are cabin announcements the videos or the oral announcements that get made the painting on the flight that you're on their potential various formats that may be advocated you've got a bill of which i think is a little bit broader obviously it covers the field safety if the if the ninth circuit were inclined to to  take on that issue i think of dualism appropriate and should be followed i'm not sure the court needs to go that broadly in order to a perm the district court's dismissal so we start from your premise that the field as you describe it is very narrow and then it passenger safety warnings on commercial airliners what follows if we adopt your definition in the field or the subs below in this case therefore therefore the district court's dismissal order should be affirmed because say it would be that the sub field of passenger safety warnings has been field preempted me in plain warnings like on the placard or announcements and i think it's going to encompass all of the various mornings here because a lot of going back to this notion well perhaps there should be some information in some aspects outside the plane i mean a lot of the questions that we're talking about here today and this goes back to your question just trotted out you can warn forever about any number of things a lot of the questions that we're talking about your excuse dressed up preemption but it's really a question of who decides is this going to be an f a regulatory decision about which of the the and less possibilities of things that could be warned about are actually going to be highlighted and brought in to consumers to do passengers attention in whatever way or is this going to be turned into a jury question under some kind of a general negligence reasonable less standard and i think if you look at the statute if you look at the governing regulations i think that  the who decides question is coming down pretty decisively in favor of the f a a the regulatory body charged with the responsibility of having the big picture and weighing all the different considerations you highlighted the turbulence issue there are a lot of guilty intentions big airplanes small airplanes getting stuck on runways for hours and on and on and on whether you let me take a page out of judge  yes that's a recognized medical condition and it's it's recognize that it's created on occasion by people sitting on airplanes without getting up and moving around i think that the most accurate way to say it is that  sitting in any environment playing train on movie old whatever can be a factor so lots of song played associated but it happens on airplanes there as dan quayle apparently got it you know from sitting on an airplane from what you read in the in the well then why don't you why are you resisting an effort to do something about it and tell the people that you're putting on your airplanes that they're running a risk to be anything thrombosis i think that's what harry purgason would want to know to answer judge question i would try to address it this way the concern here is that there is an and endless variation among the population of people flying countless numbers of people flying everybody with their own individual circumstances medical conditions and once you start down this road of saying that this particular circumstance this particular condition has got to be the subject of a specific with cardozo and everything else we got on that road i mean there was a long time when manufacturers suppliers of providers of services didn't need to tell anybody anything and then of course decided fifty sixty years ago it's not right you know if you're in a privileged position is it sometimes if you have more knowledge than the people you're selling your products or your services to that therefore you do have a duty to warn people of the facts and dangers and we're inundating with these kinds of signs and warnings now you can't walk into a building without saying the building uses cancer causing materials you know they're all over the place and you know i mean so it seems that you're way behind on that power curve if you have a known problem so your point is it's just too murky to get into my real point i don't know if it's musky i think that i think that the real question here is when the ministry the agency charged with responsibility for balancing all of the considerations getting up versus staying seated you know turbulen versus and asserted threat from d v c when the agency charged with weighing all those considerations it's presented with all the information then that's the way congressionally regulatory only that this has been set up to to be addressed and i think that that that dovetails with the way that he has approached it dilution point that you mentioned you can be inundated with too much information so that if you attempt to inform about everything you want up informing about nothing those sorts of but isn't really the issue for the f a a to decide that they could decide ok this is the v d d v t thing is a problem and this is what the warning should be and it should be placed in the manual or you know the flight book that you have there or to be told everybody when they buy a ticket but they could they could take care of it they could clearly if they wanted to enter the field and preempt warnings about the v t right our position is they feel there's already been corralled back seat belts smoking and wearing the oxygen mask i understand that but it seems to me that they could do that i recall somewhere riding on an airplane somewhere and if you look in again arguments are being attributed to us that aren't the real argument and i think part of what's going on here is that the issue here the contention is not that there will be additional costs from lawsuits that's not the argument the argument is that this specific claim is addressing a contention that there needs to be more space between seats and its algebra you've got a limited amount of cap and space the more space you're talking about the tween seats the fewer seats you've got and and that's where it comes it's not somehow a economic effect from lawsuits of a stand that there isn't any which is to some degree here we're talking about a measuring of degree of the fact and i don't know that there's a bright line rule to say here's where the fact is sufficient enough to to think the the f a a itself has indicated that i want to make sure that i can direct the court's attention to the statement that the f a a made in terms of its rule making this appears in the record document number fifteen doctors number fifty two this was a request for judicial notice docket number fifty two page six where it says and this is the f a a responding to a request for rule making to mandate greater availability of seats with more space for tall people and it said that permitting air carriers to adjust services such as seat size receiving commendations free of governmental interference in accordance with the dictates of the marketplace is exactly what was in vision in the airline deregulation act so if to make sure i'm trying to answer your question chief judge schroeder i think that there is a specific economic and competitive link here and i think that there an order of dismissal on a petition facts and the basic logic i think is inescapable which is the if you are contending that there needs to be more space between seams in a limited cabin environment you're talking about fewer seats now part of the briefing response to that that i read was a contention that well we're not asking for an injunction all we want is damages and i think what that is is forgetting or losing sight of is the recognition that the supreme court has made for example in the simple own case that common law tort actions serve a regulatory effect and you also can factor in the observation in the guy or case where the statement was specifically made it is understood in acted upon by the supreme court that if some kind of a a state law tort that relates the fares of rates in the court says the courts judge easterbrook price amortizing surely relates the price and they talk about fair use in the guidelines sun everyone relates to air fares so they're off on rates how does marlice help you because this really isn't rates you have to dig to get to rates well we submit that it is it is very directly related to rates because it's related to the pricing of the seats maybe this is the way to put it aircraft are what airlines have to sell and if you are reducing the number of those seats because you are going to increase that's a that's a big if i don't know that that's factually developed in this case that the airlines can't figure out a way to keep the same number of be if it's going to have an effect of it's going to be related to relying on the broader language that the a d a s reaction for vision loss having the force and effect of wall related to a price route or service of an air carrier that within the expansions reach of that preemption provision that's what gets you there i'm not at all convinced that you have fewer number of that you feel if you have to reconfigure the cabin necessarily have fewer seats well i think that that  is that's not something you can take judicial notice of well no it's not a matter of taking it's not something and ask not even common knowledge on these airlines or these airlines are pretty pretty good at figuring out how to stick people in airplanes now i understand that  i think maybe the best response is this is that number one when you're talking about common law suits that or that are aimed at establishing a particular standard and that standard is directly related to how many seats you've got in a plane that gives you the direct connection that makes utterly irrational loophole that would allow this to be done indirectly what couldn't be done through a state court regulation that says we want you to have sound two seats on a plane and not one more that's the problem with this because they're talking about last question when i go back to san diego today say they plan that brought they came up to the airport people had legionnaire's disease on it and the flight attendants know it and they don't have any duty to warn people who may have respiratory problems that legionnaires disease had circulated through the plane under your approach i think if you would look to see if there is a specific federal regulation you're arguing with hypotheticals phrase in the hypothetical such a way that legionnaires disease had a circulated through the ventilation system just like it did in the hotel in philadelphia years ago they have no duty under that circumstance to warn no i think that that would be a situation where if there is not a not encompass federal regulation addressing the potential for communicable diseases and that that's not going to be an appropriate topic a state court jury to say it was negligent not to have a warning that this communicable disease or a passenger may have had this disease and that may also come to the realm here i thought i heard a distinction being made that that some things are so directly obvious to the public that the warnings aren't required you had raised the question well how about a warning that says sometimes aircraft crash and the response is no that so widely known that that doesn't need to be warned about i wonder if that also encompasses the fact that there are many many people flying planes some of them are sick in various ways and some of them are not also falls into that and i think that highlights the dangers of having that kind of a a slippery slope to say this is got to be warned about and then the next thing it's got to be warned about and then the next thing it's got to be warned about can so i'm warning you that your over time and i will heed that warning and thank the court thank you i will give you a some time to respond because we bombarded you with questions but you sure time wisely or any your warnings not playing warnings that you're requesting yes well of course  right and you don't get any warnings at all out of winning do you i'm sorry i don't get any warnings at all out of winning simply damages for your clients is that right that's correct and then every time an airplane goes into a he said the savings clause shows the variation among states yuri's is a small price to pay for a system in which juries enforced safety standards provide necessary compensation for victims as well as creating standards now here thousand and two justice stevens also added to the possibility that while it's possible the federal state's boating act does occupy the whole field at least for affirmative state regulation but this was a to statement by congress or absent a statement by the regulatory agency to infer also that common law claims are excluded and i think it's been alluded to here but i just like to spell it out common law claims are different than affirmative regulation and the courts know this because well for one thing in principle you could comply with a federal regulation and suffer the risk of a tort claim and still stay in business if we have an affirmative state regulations say warne and a federal  tort claims of course help regulate the field because they provide a cost to imposing injury on people and i just like to point out in base which was not an implied reaction case but that was decided in two thousand and five this expressed preemption but in that case when the court allowed at least some common law claims i thought it was interesting that the court ended recognizing the consistency of common law with federal regulation saying in addition to you know creating an