Page 1 of 35

UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION 

JOHN DAVID MORRIS, STEVEN 

JOSEPH FLECK, ROSE MORRIS, and 

DIANE MARIE FLECK, 

Plaintiffs, 

v. 

CESSNA AIRCRAFT COMPANY, 

 

Defendant. 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

No. 3:05-cv-0015-M 

 

 MEMORANDUM OPINION AND ORDER 

Before the Court is Defendant Cessna Aircraft Company’s Motion for Summary 

Judgment [Docket Entry #66]. For the reasons stated below, the Motion is GRANTED in part 

and DENIED in part. 

I. BACKGROUND 

 On January 24, 2003, a Cessna C208B model aircraft crashed near San Angelo, Texas, 

injuring the plane’s two occupants, Plaintiffs John David Morris and Steven Joseph Fleck. The 

plane was owned by Federal Express Corporation (“FedEx”) and was being operated by Baron 

Aviation Services, a FedEx “feeder operation” that employed Fleck and Morris as pilots. Morris 

and Fleck were conducting a “check ride,” which is a test that pilots of air carriers must complete 

annually to maintain their flight status. See 14 C.F.R. 135.293(b) (2010). Fleck was acting in 

his capacity as a “check pilot”—a pilot authorized by the FAA to evaluate and determine pilot 

competence—and was observing and evaluating Morris’s operation of the plane through several 

maneuvers. The crash occurred shortly after Morris attempted to complete a simulated engine 

Case 3:05-cv-00015-M Document 139 Filed 12/01/11 Page 1 of 35 PageID 5863
Page 2 of 35

failure maneuver. 

 On January 4, 2005, Plaintiffs filed a Complaint in this Court, asserting common law 

claims for products liability based on strict liability and negligence, and breach of warranty, and 

seeking compensatory and punitive damages. (Compl. 3–7, ECF No. 1.) On December 19, 

2005, this case was transferred by the Panel on Multidistrict Litigation to the District of Kansas 

(the “MDL Court”) for coordinated and consolidated pretrial proceedings. (Transfer Order, ECF 

No. 15.) On March 12, 2007, Plaintiffs filed an Amended Complaint in the MDL court, 

asserting the same claims alleged in the original Complaint, and adding a common law fraud 

claim. (Am. Compl., In re Cessna 208 Series Aircraft Prods. Liab. Litig., No. 2:05-md-01721-

KHV (D. Kan. Apr. 12, 2007), ECF No. 189.) On April 22, 2010, the Panel on Multidistrict 

Litigation remanded the case to this Court. 

 Neither the Original nor the Amended Complaint provides much detail about Plaintiffs’ 

products liability claims. Plaintiffs’ strict liability allegations generally assert that the C208B 

was “defective, not fit for its intended purposes and unreasonably dangerous by reason of 

defective design, manufacture, assembly, inspection, testing, warning, instruction, sale, service, 

repair and/or maintenance.” (Am. Compl. 3.) As for Plaintiffs’ negligence-based products 

claim, the Amended Complaint alleges that Cessna breached its duty to exercise reasonable care 

in the design, manufacture, assembly, sale, and/or distribution of the aircraft, and also breached 

additional duties, imposed by federal regulations, concerning design, manufacture, testing, 

instructions for use, and warnings. (Am. Compl. 4–5.) 

Notwithstanding these general allegations, the parties’ briefing on Cessna’s Motion for 

Summary Judgment reveals that Plaintiffs’ allegations principally concern the C208B’s capacity 

to operate in “icing conditions”; that is, conditions conducive to the accumulation of ice on the 

Case 3:05-cv-00015-M Document 139 Filed 12/01/11 Page 2 of 35 PageID 5864
Page 3 of 35

exterior surfaces of the aircraft, which can adversely affect the aircraft’s performance. Plaintiffs’ 

common law fraud claims assert that Cessna misrepresented the C208B’s performance 

capabilities in icing conditions. 

 On June 20, 2011, Cessna filed its Motion for Summary Judgment, seeking judgment as a 

matter of law on all of Plaintiffs’ claims. 

II. SUMMARY JUDGMENT STANDARD 

Summary judgment is proper when “the movant shows that there is no genuine dispute as 

to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 

56(a). If a reasonable jury could return a verdict for the non-moving party, then there is a 

genuine dispute of material fact. Gates v. Tex. Dep’t of Protective & Regulatory Servs., 537 F.3d 

404, 417 (5th Cir. 2008) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The 

moving party bears the initial burden of identifying those portions of the record that demonstrate 

the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 

323 (1986); Lynch Props., Inc. v. Potomac Ins. Co., 140 F.3d 622, 625 (5th Cir. 1998). Once the 

movant carries its initial burden, the burden shifts to the nonmovant to show that summary 

judgment is inappropriate, by designating specific facts beyond the pleadings that prove the 

existence of a genuine dispute of material fact. See Fed. R. Civ. P. 56(a); Anderson, 477 U.S. at 

250; Fields v. City of S. Hous., 922 F.2d 1183, 1187 (5th Cir. 1991). In determining whether a 

genuine dispute of material fact exists, “factual controversies are construed in the light most 

favorable to the nonmovant, but only if both parties have introduced evidence showing that a 

controversy exists.” Lynch Props., 140 F.3d at 625 (citation omitted). 

III. ANALYSIS 

 Cessna seeks summary judgment on all of Plaintiffs’ claims. Cessna argues that the 

Case 3:05-cv-00015-M Document 139 Filed 12/01/11 Page 3 of 35 PageID 5865
Page 4 of 35

Federal Aviation Act (FAAct) of 1958 preempts the standard of care for Plaintiffs’ products 

liability claims, and that the federal standard of care is defined by, and satisfied through 

compliance with, federal regulatory standards for aircraft design and performance. Similarly, 

Cessna argues that as a matter of law, its compliance with such standards precludes Plaintiffs 

from recovering punitive damages. Cessna further argues that Plaintiffs’ breach of warranty 

claim is barred by the statute of limitations, and that there are no genuine issues of material fact 

as to Plaintiffs’ fraud claim. Finally, Cessna seeks summary judgment on its affirmative defense 

of joint enterprise, by which it asserts that there is no dispute of fact that Morris and Fleck were 

engaged in a joint enterprise during the check flight, and that the negligence of one is imputed to 

the other. 

A. Products Liability Claims—Preemption 

 The “ultimate touchstone” in any preemption case is congressional intent. Wyeth v. 

Levine, 555 U.S. 555, 129 S. Ct. 1187, 1194 (2009). Congressional intent to preempt state law 

may be explicit in statutory provisions, or it may be implied. Witty v. Delta Air Lines, Inc., 366 

F.3d 380, 384 (5th Cir. 2004). Here, Cessna does not argue that Plaintiffs’ products liability 

claims are expressly preempted by the FAAct, but rather that the FAAct impliedly preempts the 

standard of care applicable to state law products liability claims. 

 The FAAct was enacted in the wake of several high-profile accidents, with the express 

purpose of “establish[ing] a new federal agency with powers adequate to provide for the safe and 

efficient use of the navigable airspace by both civil and military operations.” H.R. Rep. No. 85-

2360 at 1 (1958). The Act created the Federal Aviation Agency, which became the Federal 

Aviation Administration (FAA), and imbued it with regulatory authority over several aspects of 

the aviation industry. Particularly relevant to this case is the FAAct’s requirement that the FAA 

Case 3:05-cv-00015-M Document 139 Filed 12/01/11 Page 4 of 35 PageID 5866
Page 5 of 35

Administrator “shall promote safe flight of civil aircraft in air commerce by prescribing . . . 

minimum standards required in the interest of safety . . . for the design, material, construction, 

quality of work, and performance of aircraft, aircraft engines, and propellers.” 49 U.S.C. § 

44701(a)(1) (2006). Furthermore, the Act establishes a three-phase process for approving and 

certifying the safety of an aircraft’s design, manufacturing process, and operation. Id. § 44704. 

The District Court for the Eastern District of Texas recently explained this process as follows: 

Prior to manufacturing a new aircraft, a manufacturer must receive a “type 

certificate” indicating the FAA's approval of a plane's basic design and ensuring 

that the design complies with all applicable FAA regulations. See 49 U.S.C. § 

44704(a); 14 C.F.R. § 21.21. Next, a manufacturer must obtain a “production 

certificate,” which indicates that the FAA approves of the manufacturing process 

that will be used to construct the approved design. See 49 U.S.C. § 44704(b); 14 

C.F.R. §§ 21.139, 21.143. Finally, before a plane can be put into service, the 

owner of the aircraft must obtain an “airworthiness certificate” to prove the 

aircraft is in a safe operating condition and conforms to the type certificate. 49 

U.S.C. § 44704(c); 14 C.F.R. § 21.183. 

Monroe v. Cessna Aircraft Co., 417 F.Supp.2d 824, 833 (E.D. Tex. 2006). Much of Cessna’s 

preemption argument relies on the extensiveness of this certification regime, and Cessna’s 

compliance with it. 

 The FAAct contains a savings clause that, when originally enacted, stated, “Nothing 

contained in this Act shall in any way abridge or alter the remedies now existing at common law 

or by statute, but the provisions of this Act are in addition to such remedies.” Federal Aviation 

Act of 1958, Pub. L. No. 85-726, § 1106, 72 Stat. 731, 798 (current version at 49 U.S.C. § 

40120(c) (“A remedy under this part is in addition to any other remedies provided by law.”)).1

 

Although the FAAct did not originally contain an express preemption provision, when Congress 

passed the Airline Deregulation Act (ADA) of 1978, it added a provision that expressly preempts 

 

1

 The savings clause was amended without substantive change as part of the recodification of Title 49 “to eliminate 

unnecessary words and for clarity and consistency in the revised title and with other titles of the United States 

Code.” 49 U.S.C. § 40120 note (Historical and Revision Notes). 

Case 3:05-cv-00015-M Document 139 Filed 12/01/11 Page 5 of 35 PageID 5867
Page 6 of 35

state and local “law[s], regulation[s], or other provision[s] having the force and effect of law 

related to a price, route, or service of an air carrier.” 49 U.S.C. § 41713(b)(1). Congress further 

amended the FAAct by passing the General Aviation Revitalization Act (GARA) of 1994, which 

added an eighteen-year statute of repose applicable to civil actions against certain aircraft 

manufacturers for injury, death, or property damage arising out of accidents involving such 

manufacturers’ aircraft. Pub. L. 103-298, § 2(a), 108 Stat. 1552 (codified at 49 U.S.C. § 40101 

Note (2007)).2

 GARA expressly preempts longer state law statutes of repose for such claims. 

Id. § 2(d).3

 Against this backdrop, Cessna urges that implied preemption precludes Plaintiffs’ 

 

2

 GARA’s general statute of repose states, 

(a) In general.--Except as provided in subsection (b), no civil action for damages for death or 

injury to persons or damage to property arising out of an accident involving a general aviation 

aircraft may be brought against the manufacturer of the aircraft or the manufacturer of any new 

component, system, subassembly, or other part of the aircraft, in its capacity as a manufacturer if 

the accident occurred-- 

(1) after the applicable limitation period beginning on-- 

(A) the date of delivery of the aircraft to its first purchaser or lessee, if delivered directly from 

the manufacturer; or 

(B) the date of first delivery of the aircraft to a person engaged in the business of selling or 

leasing such aircraft; or 

(2) with respect to any new component, system, subassembly, or other part which replaced 

another component, system, subassembly, or other part originally in, or which was added to, the 

aircraft, and which is alleged to have caused such death, injury, or damage, after the applicable 

limitation period beginning on the date of completion of the replacement or addition. 

(b) Exceptions.--Subsection (a) does not apply-- 

(1) if the claimant pleads with specificity the facts necessary to prove, and proves, that the 

manufacturer with respect to a type certificate or airworthiness certificate for, or obligations 

with respect to continuing airworthiness of, an aircraft or a component, system, subassembly, or 

other part of an aircraft knowingly misrepresented to the Federal Aviation Administration, or 

concealed or withheld from the Federal Aviation Administration, required information that is 

material and relevant to the performance or the maintenance or operation of such aircraft, or the 

component, system, subassembly, or other part, that is causally related to the harm which the 

claimant allegedly suffered; 

(2) if the person for whose injury or death the claim is being made is a passenger for purposes of 

receiving treatment for a medical or other emergency; 

(3) if the person for whose injury or death the claim is being made was not aboard the aircraft at 

the time of the accident; or 

(4) to an action brought under a written warranty enforceable under law but for the operation of 

this Act. 

49 U.S.C. § 40101, Note. 

3

 This provision states, “This section supersedes any State law to the extent that such law permits a civil action 

described in subsection (a) to be brought after the applicable limitation period for such civil action established by 

subsection (a).” Id.

Case 3:05-cv-00015-M Document 139 Filed 12/01/11 Page 6 of 35 PageID 5868
Page 7 of 35

products liability claims. Implied preemption generally falls into two types: field preemption 

and conflict preemption. See English v. Gen. Elec. Co., 496 U.S. 72, 78–79 (1990). Here, 

Cessna invokes only the former. Under the doctrine of field preemption, “state law is preempted where it regulates conduct in a field that Congress intended the Federal Government to 

occupy exclusively.” English, 496 U.S. at 79. Such intent may be inferred from a scheme of 

federal regulation “so pervasive as to make reasonable the inference that Congress left no room 

for the States to supplement it, or where an Act of Congress touche[es] a field in which the 

federal system will be assumed to preclude enforcement of state laws on the same subject.” Id.

(alteration in original) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)) 

(internal quotation marks omitted). However, where the field that Congress is said to have 

preempted “includes areas that have ‘been traditionally occupied by the States,’” id. (quoting 

Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977)) (internal quotation marks omitted), courts 

“‘start with the assumption that the historic police powers of the States were not to be superseded 

by the Federal Act unless that was the clear and manifest purpose of Congress.’” Wyeth, 129 S. 

Ct. at 1194–95.

 As an initial matter, the parties dispute whether the presumption against preemption 

applies here. Cessna argues that there is a presumption in favor of preemption in this case 

because “the States have never ‘traditionally occupied’ the field of air safety regulation,” a field 

which, Cessna claims, is “inherently federal in character.” (Def.’s Br. 7.) However, this 

argument misunderstands the principle underlying the presumption against preemption. 

Courts “rely on the presumption [against preemption] because respect for the States as 

‘independent sovereigns in our federal system’ leads . . . [courts] to assume that ‘Congress does 

not cavalierly pre-empt state-law causes of action.’” Wyeth, 129 S. Ct. at 1193 n.3 (quoting 

Case 3:05-cv-00015-M Document 139 Filed 12/01/11 Page 7 of 35 PageID 5869
Page 8 of 35

Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996)). Thus, “the presumption . . . accounts for the 

historic presence of state law but does not rely on the absence of federal regulation.” Id.

(emphasis added). For instance, in Wyeth v. Levine, 555 U.S. 555 (2009), the Supreme Court 

concluded that, even though “the Federal Government has regulated drug labeling for more than 

a century,” the presumption was applicable to the Court’s analysis of whether federal law 

preempted the plaintiff’s state law claim that a drug manufacturer’s FDA-approved label failed 

to warn consumers of certain risks. Id. at 1195 & n.3. 

Similarly, in Burbank v. Lockheed Air Terminal Inc., 411 U.S. 624 (1973), the Supreme 

Court found the presumption applicable to its analysis of whether the FAAct preempted local 

airport noise regulation. Id. at 638. Rather than focusing on the historic presence of federal 

regulation in regulating air travel, the Court focused on the presence of state law in regulating 

noise, finding that “[c]ontrol of noise is of course deep-seated in the police power of the States.” 

Id.

Cessna, however, relies on Buckman Co. v. Plaintiffs’ Legal Committee, 531 U.S. 341 

(2001), in which the Supreme Court did not apply the presumption in analyzing whether the 

plaintiff’s so-called fraud-on-the-FDA claims were preempted by federal law. Id. at 347. In 

Buckman, the Court held, “[p]olicing fraud against federal agencies is hardly ‘a field which the 

States have traditionally occupied,’ such as to warrant a presumption against finding federal preemption of a state-law cause of action.” Id. (citation omitted). 

Here, the presumption against finding preemption applies, because state tort law has long 

been concerned with securing compensation for its citizens who sustain injuries caused by 

defective products. See Sprietsma v. Mercury Marine, 537 U.S. 51, 69 (2002) (requiring “clear 

and manifest” congressional intent for implied preemption of state common law claims relating 

Case 3:05-cv-00015-M Document 139 Filed 12/01/11 Page 8 of 35 PageID 5870
Page 9 of 35

to boat manufacturing). Just as the federal government’s long history of regulating 

pharmaceutical drugs did not dictate preemption in Wyeth, the history of federal regulation over 

air transportation does not detract from the states’ long-standing role in ensuring product safety. 

Moreover, unlike the fraud-on-the-FDA claims in Buckman, the common law products liability 

claims Plaintiffs pursue in this case are not specifically directed to the federal government’s 

regulatory authority but, rather, seek to impose general duties on all product manufacturers and 

designers. Thus, the presumption against preemption applies in this case, and the Court may 

only find preemption if “congressional intent to supersede [the common law standard of care for 

Plaintiffs’ products liability claims is] clear and manifest.” English, 496 U.S. at 79. 

Cessna argues that even if there is no presumption in favor of preemption here, Plaintiffs’ 

claims are nevertheless preempted because the field of aviation safety, or at least the particular 

area of protection of aircraft from icing, is occupied exclusively by the federal government. In 

light of the FAAct’s savings clause, Cessna does not contend that the Act completely bars state 

law causes of action against aircraft manufacturers; rather, Cessna asserts that only the state-law 

standard of care is preempted by federal law. In Cessna’s view, then, state-law suits may still be 

brought for injuries and damage sustained due to defects in aircraft design, but only to vindicate 

violations of federal standards. In this case, Cessna asserts that its compliance with the federal 

standard of care for aircraft design is conclusively established by the FAA’s issuance of a type 

certificate for the aircraft in question. 

 Neither the Supreme Court nor the Fifth Circuit has held that the entire field of aviation, 

or that of air safety, is impliedly preempted by the FAAct. Both courts, however, have found 

specific areas of aviation preempted. In Burbank, the Supreme Court held that the FAAct 

preempted a city ordinance that made it unlawful for jet aircraft to take off from the HollywoodCase 3:05-cv-00015-M Document 139 Filed 12/01/11 Page 9 of 35 PageID 5871
Page 10 of 35

Burbank Airport between 11:00 p.m. and 7:00 a.m. 411 U.S. at 625–26. The Court reviewed the 

FAAct’s requirement that the FAA prescribe “rules and regulations . . . for the control and 

abatement of aircraft noise,” and also examined the extensive and particularized regulations and 

standards enacted pursuant to that statutory mandate. Id. at 627–35. Ultimately, “[i]t [wa]s the 

pervasive nature of the scheme of federal regulation of aircraft noise that [led the Court] to 

conclude that there [was] pre-emption.” Id. at 633. 

The Fifth Circuit also has found implied field preemption in a specific area of aviation 

safety. Witty v. Delta Air Lines, Inc., 366 F.3d 380 (5th Cir. 2004). In Witty, the plaintiff, a 

commercial airline passenger, suffered deep vein thrombosis (DVT) after a flight from Louisiana 

to Connecticut. Id. at 381. The plaintiff alleged, among other things, that the airline was 

negligent in failing to warn passengers about the risks of DVT. Id. The Fifth Circuit concluded 

that field preemption was applicable because “there exists a comprehensive scheme of federal 

regulation.”4

 Id. at 384. Initially, the court observed that FAA regulations “include a general 

federal standard of care for aircraft operators, requiring that ‘no person may operate an aircraft in 

a careless or reckless manner so as to endanger the life or property of another.’” Id. (quoting 14 

C.F.R. § 91.13(a) (2003)). The court then identified “a number of federal regulations governing 

the warnings and instructions [that] must be given to airline passengers,” such as the regulations 

requiring placement of “no smoking” placards in lavatories, illumination of “no smoking” signs 

during non-smoking flights, and the use of the “fasten seat belt” sign during various portions of 

all flights. Id. The court also took note of the regulations that set out in detail the oral briefings 

given by flight attendants to passengers, and the information that must be included in passenger 

safety briefing cards. Id. 

 

4

 The court in Witty also held that conflict preemption applied. 366 F.3d at 385. However, since conflict 

preemption is not implicated in this case, the Court does not describe Witty’s holding on that point. 

Case 3:05-cv-00015-M Document 139 Filed 12/01/11 Page 10 of 35 PageID 5872
Page 11 of 35

These and other regulations led the court to conclude that “the federal regulatory 

requirements for passenger safety warnings and instructions are exclusive and preempt all state 

standards and requirements.” Id. at 385. In support of this conclusion, the court stated that 

“Congress enacted a pervasive regulatory scheme covering air safety concerns that includes 

regulation of [passenger] warnings and instructions.” Id. The court, however, carefully cabined 

its holding to the facts before it: 

Ultimately, we need not decide whether a state claim for failure to warn 

passengers of air travel risks is entirely preempted, or, as another circuit has held, 

is preempted to the extent that a federal standard must be used but that state 

remedies are available. We hold that, at a minimum, any such claim must be 

based on a violation of federally mandated warnings. 

Finally, we note our intent to decide this case narrowly by addressing the 

precise issues before us. 

Id. (footnote omitted) (citing Abdullah v. Am. Airlines, Inc., 181 F.3d 363, 376 (3d Cir. 1999)). 

Because warnings about the risk of DVT were not mandated by the FAA, the court held that the 

defendant could not be liable for failing to provide such warnings. 

 The Third Circuit reached a broader conclusion in Abdullah v. American Airlines, Inc., 

181 F.3d 363 (3d Cir. 1999), finding “implied federal preemption of the entire field of aviation 

safety.” Id. at 365. There, the plaintiffs sustained serious injuries as a result of turbulence 

during a flight, and claimed the pilot and flight crew were negligent in failing to avoid the 

turbulent conditions or to give warnings to permit the plaintiffs to protect themselves. Id. The 

court conducted an extensive review of the FAAct and its legislative history, noting that, in 

enacting the FAAct, “Congress found the creation of a single, unitary system of regulation vital 

to increasing air safety.” Id. at 368. Particularly convincing to the court was the following 

statement from the Act’s Senate Report: 

[A]viation is unique among transportation industries in its relation to the federal 

Case 3:05-cv-00015-M Document 139 Filed 12/01/11 Page 11 of 35 PageID 5873
Page 12 of 35

government—it is the only one whose operations are conducted almost wholly 

within federal jurisdiction, and are subject to little or no regulation by States or 

local authorities. Thus, the federal government bears virtually complete 

responsibility for the promotion and supervision of this industry in the public 

interest. 

Id. (quoting S. Rep. No. 85-1811, at 5 (1958)). In the Third Circuit’s view, then, the FAAct’s 

“legislative history revealed[ed] that Congress intended the [FAA] Administrator . . . to exercise 

sole discretion in regulating air safety.” Id. at 369. 

 Moreover, the court in Abdullah observed that the FAA has implemented a 

comprehensive system of rules and regulations to effectuate its broad authority to regulate air 

safety, including regulation of pilot certification, pilot pre-flight duties, pilot flight 

responsibilities, and flight rules. Id. Also of importance to the court’s decision was the 

recognition by several federal courts, including the Supreme Court, of the FAAct’s focus on 

airspace regulation. Id. (citing Burbank, 411 U.S. at 639; Air Line Pilots Ass’n, Int’l v. Quesada, 

276 F.2d 892, 894 (2d Cir. 1960); Kohr v. Allegheny Airlines, Inc., 504 F.2d 400, 403 (7th Cir. 

1974); British Airways Bd. v. Port Auth., 558 F.2d 75, 84 (2d Cir. 1977)). Guided by these 

judicial interpretations and the legislative history of the FAAct, the Third Circuit concluded that 

Congress’s intent was to federally regulate aviation safety and that, therefore, “any state or 

territorial standards of care relating to aviation safety are federally preempted.” Id. at 371. 

 Apparently aware that the breadth of its holding exceeded those of the Supreme Court 

and other circuits, the Third Circuit explained that its conclusion was simply a logical extension 

of the reasoning of those “decisions in which courts found federal preemption of discrete, safetyrelated matters, such as airspace management, flight operations, and aviation noise.” Id. (“[I]t 

would be illogical to conclude that, while federal law preempts state and territorial regulation of 

matters such as pilot licensing, it does not preempt regulations relating to the exercise of the 

Case 3:05-cv-00015-M Document 139 Filed 12/01/11 Page 12 of 35 PageID 5874
Page 13 of 35

specific skill for which licensing is necessary—pilots’ operation of aircraft.”). The court found 

further support for its “move from specific to general” in the regulations’ general standard of 

care for aircraft operation: “No person may operate an aircraft in a careless or reckless manner so 

as to endanger the life or property of another.” Id. (quoting 14 C.F.R. § 91.13(a)). Based on this 

provision, the court concluded that even in safety-related matters where Congress or the FAA 

had not prescribed specific rules or regulations, there was no gap in the federal standards to fill 

with a state common law standard of care. Id. at 374. Even so, the court held that the savings 

clause limited the FAAct’s preemptive effect to state standards of care, concluding that state tort 

remedies were left in place, and that, therefore, “plaintiffs, who are injured during a flight as a 

result of the violation of federal air safety standards, may have a remedy in state . . . law.” Id. at 

376. 

 Citing the holdings in Burbank, Witty, and Abdullah, Cessna asserts that “[t]he federal 

government fully occupies the field of aviation safety, particularly in regard to the design 

certification and operation of aircraft, where the federal interest and oversight is pervasive,” and 

that, therefore, “[w]hile state law remedies are preserved, the standard of care to be applied is 

exclusively federal.” (Def.’s MSJ Br. 2.) Like the court in Abdullah, Cessna emphasizes the 

FAAct’s goal of uniformity in aviation regulation and the broad regulatory authority vested in 

the FAA. Cessna notes that the FAA regulations comprise over 2,000 pages of detailed rules 

governing pilot qualifications, airport operations, flight operations, and security procedures, 

among other things. Cessna places particular emphasis on the “multi-tiered system to ensure 

compliance with the airworthiness standards,” pursuant to which the FAA issues a type 

certificate to approve an aircraft’s design, a production certificate to ensure proper 

manufacturing procedures, and an airworthiness certificate issued for each individual aircraft 

Case 3:05-cv-00015-M Document 139 Filed 12/01/11 Page 13 of 35 PageID 5875
Page 14 of 35

before it can be operated. See 49 U.S.C. §§ 44704(a)–(d). 

 After careful consideration of the Third Circuit’s reasoned opinion in Abdullah, despite 

the inarguably expansive regulatory role occupied by the federal government in aviation safety, 

this Court cannot conclude that the Plaintiff’s claims are preempted. Neither the text of the 

FAAct, its legislative history, nor its associated regulations demonstrate a clear and manifest 

congressional intent to supersede the state law standard of care for common law products 

liability claims. 

 While Supreme Court and Fifth Circuit precedent make clear that state regulation of 

discrete areas of aviation safety can be and are preempted by the FAAct, extrapolating from 

those holdings a conclusion that the entire field of aviation safety is preempted is, in this Court’s 

view, unwarranted. At the outset, the fact that the Supreme Court and the Fifth Circuit—whose 

decisions bind this Court—both found it prudent to tailor their field preemption analyses to 

discrete areas of aviation suggests that this Court should take a similar path. Additionally, the 

structure of the FAAct suggests varying levels of regulatory control over different areas of 

aviation safety. For instance, the Act requires the FAA to prescribe “minimum standards 

required in the interest of safety” for aircraft design, construction, and performance, but requires 

the prescription of “regulations and minimum standards” in other areas, such as aircraft 

inspection and “other practices, methods, and procedures that the Administrator finds necessary 

for safety in air commerce.” 49 U.S.C. § 44701(a) (emphasis added). Thus, the FAAct seems to 

grant the FAA greater regulatory authority in some areas than others, suggesting that the Act’s 

preemptive effect may also vary between areas. 

 The reasoning of Abdullah does not convince the Court to the contrary. For instance, the 

Third Circuit, in explaining its “move from specific to general,” stated that it would be illogical 

Case 3:05-cv-00015-M Document 139 Filed 12/01/11 Page 14 of 35 PageID 5876
Page 15 of 35

to find federal preemption in the area of pilot licensing if the standard of care for performance by 

licensed pilots was not also preempted. To this Court, it seems no more illogical to permit 

federal law to regulate licensure and state law to regulate conduct, than to allow federal law to 

dictate a standard of care and state law the remedy. Perhaps extensive regulation in one area 

suggests the possibility that similar regulation may be imposed in another. This, however, falls 

far short of demonstrating a clear and manifest intent to exclusively occupy all areas of a 

regulated field. 

 The Court is similarly not persuaded by Abdullah’s reliance on the federal regulation 

providing a general standard of care for aircraft operation as a basis for finding preemption of all 

air safety issues. To be sure, this regulation, which provides a comprehensive standard of care 

for aircraft operation, may eliminate any gap that state law standards of care might fill regarding 

aircraft operation, but it does not suggest that no such gaps exist in other areas of aviation safety. 

In fact, the provision’s existence demonstrates the opposite—when the FAA wants to prescribe a 

general standard of care for a certain aspect of aviation safety, it knows how to do so. 

 In light of the restrained approach taken by the Supreme Court and the Fifth Circuit, as 

well as the structure of the FAAct, this Court cannot conclude that Congress clearly and 

manifestly intended the federal government exclusively to occupy the broad field of aviation 

safety. This, however, does not end the Court’s preemption inquiry. It must still be determined 

whether the discrete area of aviation safety implicated by Plaintiffs’ claims—mainly aircraft 

design and manufacture—is preempted. The Court concludes that it is not. 

 Cessna focuses principally on the multi-tiered aircraft certification regime mandated by 

the FAAct and implemented by federal regulations. As evidence of Congress’s preemptive 

intent, Cessna points to language from GARA’s legislative history that describes the 

Case 3:05-cv-00015-M Document 139 Filed 12/01/11 Page 15 of 35 PageID 5877
Page 16 of 35

extensiveness of federal regulation in this area: 

Significant in this regard is the “cradle to grave” Federal regulatory oversight of 

the industry. General aviation aircraft must meet rigid standards set by the 

Federal Aviation Administration. Before any aircraft flies for the first time, it 

must be inspected and certified as airworthy by the FAA. If the aircraft is to be 

produced in any number, it must meet a further set of FAA-prescribed criteria. 

H.R. Rep. No. 103-525, at 5. 

 There can be no question that the FAAct and federal regulations impose numerous 

requirements that must be satisfied before an aircraft may be manufactured or operated. 

However, extensive regulation alone does not demonstrate a clear and manifest intent to 

supersede the States’ exercise of their police powers. Rather, the scheme of regulation must be 

“so pervasive as to make reasonable the inference that Congress left no room for the States to 

supplement it.” English, 496 U.S. at 79. Unlike the regulations at issue in Burbank and Witty, 

the federal government’s regulatory presence in the area of aircraft design and manufacture, 

while extensive, leaves room for the States’ traditional role of compensating injuries based on 

common law products liability standards. 

 At the heart of the Supreme Court’s holding in Burbank was the importance of uniform 

and exclusive federal control of navigable airspace. 411 U.S. at 626–27. The Court 

characterized as fatal the concession by the Solicitor General, who argued against preemption, 

that “as respects airspace management, there is pre-emption.” Id. at 627. That concession was 

fatal because ordinances preventing the takeoff and landing of jet aircraft during certain hours—

so-called curfews—affect airspace management by increasing congestion during the non-curfew 

hours. Id. The Court further relied on legislative history showing that one of Congress’s main 

goals in authorizing noise-related regulation was to prevent cities and states from passing their 

own regulations. Id. at 636–37 (citing 118 Cong. Rec. 37,083 (statement of Rep. Staggers)). 

Case 3:05-cv-00015-M Document 139 Filed 12/01/11 Page 16 of 35 PageID 5878
Page 17 of 35

 Here, on the other hand, Plaintiffs’ products liability claims do not implicate control over 

national airspace, and the concerns with uniform and exclusive control in airspace management 

therefore are not implicated in this case. 

Furthermore, whereas the legislative history regarding noise-control regulation suggested 

a specific congressional intent to preempt state and local noise regulation, the legislative history 

on the subject of aircraft design and production does not. To the contrary, the House Report to 

GARA states that “[t]he liability of general aviation aircraft manufacturers is governed by tort 

law,” and “[w]hile the specific contours have ebbed and flowed, the public’s right to sue for 

damages is ultimately grounded in the experiences of the legal system and values of the citizens 

of a particular State.” H.R. Rep. No. 103-525(II), at 3 (emphasis added). For that reason, 

“Congress [chose] to tread very carefully when considering proposals . . . that would preempt 

State liability law.” Id. at 4. It was with those concerns in mind that “the Committee voted to 

permit, in this exceptional instance, a very limited Federal preemption of State law.” Id. “Rather 

than seeking to revise substantially a number of substantive and procedural matters relating to 

State tort law, as earlier legislative efforts would have done, [GARA] is limited to creating a 

statute of repose.” Id. (emphasis added). Thus, “in cases where the statute of repose has not 

expired, State law will continue to govern fully, unfettered by Federal interference.” Id. at 6 

(emphasis added). 

The House Report for GARA strongly suggests that at the time Congress passed GARA, 

it understood state tort law, not the FAAct or its regulations, to govern products liability claims 

against aircraft manufacturers. The legislative history further suggests that after passing GARA, 

Congress intended state tort law to continue to fully govern such suits, both on substantive and 

procedural matters, except as to the statute of repose. This legislative history prevents this Court 

Case 3:05-cv-00015-M Document 139 Filed 12/01/11 Page 17 of 35 PageID 5879
Page 18 of 35

from finding a clear and manifest intent to preempt state law. 

Witty does not compel a different conclusion. There, as in Abdullah, the plaintiff’s 

failure-to-warn claim implicated the standard of care for aircraft operation—an area in which the 

FAA has gone so far as to prescribe a general standard of care. Furthermore, in Witty, the Fifth 

Circuit stressed the importance of uniformity in flight warnings: “[T]he import of one warning is 

diluted by additional warnings that might be imposed under state law.” Witty, 366 F.3d at 385. 

In this case, however, aircraft operation and the concerns for uniformity that go with it are not 

implicated. In fact, in the area of aircraft design and manufacture requirements, the FAAct 

empowers the FAA to create only “minimum standards,” which seems to speak to a floor of 

regulatory compliance. 49 U.S.C. § 44701(a)(1); see also Monroe, 417 F. Supp. 2d at 832–33. 

 Finally, Cessna urges that the FAA’s own view of preemption “should make a 

difference,” (Def.’s Br. 20 (quoting Geier v. Am. Honda Motor Co., 529 U.S. 861, 883 (2000))), 

citing filings from other cases that purportedly demonstrate the FAA’s position, expressed 

through the Attorney General, that “aircraft design requirements are preempted ‘by exclusive 

federal authority over the field of aviation safety (Id. at 21). In so arguing, Cessna relies on the 

Supreme Court’s holding that courts should “give[] ‘some weight’ to an agency’s views about 

the impact of tort law on federal objectives when ‘the subject matter is technica[l] and the 

relevant history and background are complex and extensive.’” Wyeth, 129 S. Ct. at 1201 

(quoting Geier, 529 U.S. at 883). However, it is “an agency’s explanation of how state law 

affects the regulatory scheme” that courts attend to; they do not “defer[] to an agency’s 

conclusion that state law is preempted.” Id. Furthermore, “[t]he weight [a court] accord[s] the 

agency’s explanation of state law’s impact on the federal scheme depends on its thoroughness, 

consistency, and persuasiveness.” Id.

Case 3:05-cv-00015-M Document 139 Filed 12/01/11 Page 18 of 35 PageID 5880
Page 19 of 35

 Here, Cessna cites three filings by the United States, each from a different case. First is 

the Statement of Interest filed by the United States in Air Evac EMS, Inc. v. Robinson, 486 F. 

Supp. 2d 713 (M.D. Tenn. 2007), a case involving state regulations requiring emergency 

ambulance helicopters to have certain equipment not required by FAA regulations. See

Statement at 7, Air Evac EMS, 486 F. Supp. 2d 713 (No. 3:06-cv-00239), ECF No. 41-1. There, 

counsel for the United States argued that Tennessee’s regulations were expressly preempted by 

the ADA, and impliedly preempted under the doctrines of field and conflict preemption. Id. at 9, 

12, 16. 

Second, Cessna cites the FAA’s Brief in City of Santa Monica v. FAA, 631 F.3d 550 

(D.C. Cir. 2011), in which the City appealed the FAA’s conclusion that an ordinance banning 

certain categories of aircraft from operating at Santa Monica Municipal Airport was preempted. 

See Brief for Respondent, City of Santa Monica, 631 F.3d 550 (No. 09-1233). In its brief, the 

FAA asserted that the FAAct “gives the FAA Administrator plenary authority for the regulation 

of air commerce in the interests of safety, security, and the development of civil aeronautics,” 

and that “[a]ircraft design and operations are governed by strict federal certification rules and 

operating rules.” Id. at 4 (citations omitted). 

Finally, Cessna cites the Statement of Interest filed by the United States in Goodspeed 

Airport, LLC v. East Haddam Inland Wetlands & Watercourses Commission, 681 F. Supp. 2d 

182 (D. Conn. 2010), aff’d, 634 F.3d 206 (2d Cir. 2011), where a private airport argued that state 

environmental regulations prohibiting the airport from trimming nearby trees were preempted by 

the FAAct. See Statement, Goodspeed, 681 F. Supp. 2d 182 (No. 3:06-cv-00930-MRK), ECF 

No. 112. Although arguing against preemption, the United States noted that “[t]he FAA has 

established a comprehensive regulatory scheme in furtherance of [the FAAct’s] commands, 

Case 3:05-cv-00015-M Document 139 Filed 12/01/11 Page 19 of 35 PageID 5881
Page 20 of 35

governing inter alia, the certification of aircraft.” Id. at 6. 

 Although only one of the three filings cited by Cessna was specifically made on behalf of 

the FAA, “[t]here is ‘no reason to suspect that the [Attorney General’s] representation of [the 

FAA’s] views reflects anything other than the agency’s fair and considered judgment on the 

matter.’” Williamson v. Mazda Motor of Am., Inc., 131 S. Ct. 1131, 1139 (2011) (quoting Geier, 

529 U.S. at 884) (internal quotation marks omitted). Thus, the statements described above 

represent three recent and consistent statements by the FAA, asserting that the FAAct preempts 

the entire field of aviation safety, or at least the discrete area of aircraft design requirements. 

Nevertheless, several considerations lead the Court to conclude that these statements do not 

demonstrate a clear and manifest preemptory intent on the part of Congress. 

 Although the three cited statements provide consistent views on the issue of field 

preemption, the government has not always taken that view. In Burbank, the Solicitor General 

argued against field preemption of aircraft noise regulation, a position that is at least in tension, 

if not incompatible, with the view that products liability claims are preempted. 411 U.S. at 627. 

Furthermore, the opinions expressed by the United States in the filings cited by Cessna do not 

provide the in-depth analysis of complicated regulatory requirements that draws on an agency’s 

“unique understanding.” Wyeth, 129 S. Ct. at 1201. In fact, at least two of the filings—those in 

Goodspeed and City of Santa Monica—were submitted in cases wholly unrelated to aircraft 

design requirements, mentioning the topic only in a general manner. Such “conclusion[s]” 

regarding preemption are not afforded deference. See id. And although the third case, Air Evac 

EMS, involved facts somewhat analogous to this one, the United States’ regulatory analysis 

focused primarily on rules for air ambulance services. See Statement of Interest at 13–14, Air 

Evac EMS, 486 F. Supp. 2d 713 (No. 3:06-cv-00239). Given that the fact-intensive nature of 

Case 3:05-cv-00015-M Document 139 Filed 12/01/11 Page 20 of 35 PageID 5882
Page 21 of 35

preemption analysis prevents “prior cases on pre-emption [from being] guidelines in the present 

inquiry,” Burbank, 411 U.S. at 638, neither should the FAA’s opinion regarding preemption in 

another scenario have much weight in determining the outcome here. 

 To sum up, in light of the FAAct’s structure and legislative history, as well as the lack of 

other evidence of clear and manifest congressional intent to preempt the field or air safety 

generally or aircraft design in particular, the Court concludes that the FAAct does not preempt 

the common law standard of care applicable to Plaintiffs’ products liability claims. 

B. Common Law Fraud 

 Cessna also moves for summary judgment on Plaintiffs’ fraud claim. The elements of 

common law fraud are (1) the defendant made a material representation; (2) the representation 

was false; (3) when the defendant made the representation, he knew it was false or made it 

recklessly without any knowledge of the truth and as a positive assertion; (4) the defendant made 

the representation with the intent that the plaintiff should act on it; (5) the plaintiff acted in 

reliance on the representation; and (6) the plaintiff thereby suffered injury. Baleares Link 

Express, S.L. v. GE Engine Servs.–Dall., LP, 335 S.W.3d 833, 839 (Tex. App.—Dallas 2011, no 

pet.). 

The Plaintiffs assert two theories of common law fraud. One theory involves the testing 

data that Cessna submitted to the FAA to obtain the type certificate for the C208B. The 

Plaintiffs allege that when Cessna conducted test flights necessary to certify the aircraft for flight 

into known icing conditions, Cessna failed to measure or test a number of variables, the 

measurement of which is required by federal regulations. According to Plaintiffs, these failures 

constituted fraudulent misuse of the delegated option authorization granted to Cessna by the 

Case 3:05-cv-00015-M Document 139 Filed 12/01/11 Page 21 of 35 PageID 5883
Page 22 of 35

FAA,5

 leading to the improper and fraudulent certification of the aircraft for flight into known 

icing conditions. 

Plaintiffs’ other theory of common law fraud concerns re-training courses Cessna 

provided to pilots on flying the C208B in icing conditions. Contained in the course materials 

was a series of charts, prepared by Cessna’s training administrator, showing the effect of ice 

accumulation on the aircraft’s performance; specifically, the effect on its rate of climb and 

maximum airspeed. The Plaintiffs allege that the values in these charts were created out of “thin 

air” by Cessna’s training administrator and, therefore, constituted false representations. 

 Although Cessna argues that both of Plaintiffs’ fraud theories fail on multiple elements, 

the Court concludes that, regarding both theories, there is no genuine dispute of material fact as 

to the fourth element—intent to induce reliance—and the Court therefore does not address 

Cessna’s other arguments. 

 Although privity between a plaintiff and defendant is not necessary to prove intent to 

induce reliance, mere foreseeability that a plaintiff might rely on the defendant’s representations 

is not enough to show intent to induce reliance. Baleares Link, 335 S.W.3d at 839. In fact, 

“[e]ven an obvious risk that a third party will rely on a representation is not enough to impose 

liability.” Id. Rather, “proof of intent to induce the plaintiff's reliance requires proof that the 

defendant knew of an especial likelihood that the particular plaintiff would rely on the 

defendant's representations.” Id. at 840. 

 In Baleares Link Express, S.L. v. GE Engine Services–Dallas, LP, 335 S.W.3d 833 (Tex. 

 

5

 Delegated option authorization is a status the FAA may confer on manufacturers of certain types of aircraft and 

who meet certain requirements. See 14 C.F.R. § 21.239 (2011); see also 49 U.S.C. § 44702(d) (providing the 

statutory authority for the FAA Administrator to “delegate to a qualified private person . . . a matter related to (A) 

the examination, testing, and inspection to issue a [type, production, and airworthiness] certificate . . . ; and (B) 

issuing the certificate”). The designated option authorization allows such a manufacturer to obtain new type 

certificates by performing its own testing and submitting the relevant information and data to the FAA. 14 C.F.R. § 

21.253. 

Case 3:05-cv-00015-M Document 139 Filed 12/01/11 Page 22 of 35 PageID 5884
Page 23 of 35

App.—Dallas 2011, no pet.), the plaintiff leased an aircraft that later suffered catastrophic engine 

failure due to a malfunctioning roller bearing, which had been installed by the defendant. Id. at 

835. The defendant’s installation of the roller bearing occurred more than three years before the 

plaintiff leased the plane. Id. In connection with the repairs, the defendant issued an FAA 

airworthiness approval tag for the engine. Id.

 In asserting a fraud claim against the defendant, the plaintiff relied on the defendant’s 

statements, made in one of the airworthiness approval tags, that the engine was repaired in 

accordance with the manufacturer’s manual and in accordance with FAA regulations. Id. at 839. 

The defendant argued that neither statement could form the basis of a fraud claim because there 

was no evidence the airworthiness approval tag was issued to the plaintiff—in fact, the engine 

was under lease to a different lessee when the tag was issued. Id. Even assuming that the 

defendant knew the airworthiness approval tag would be reviewed and relied on by subsequent 

operators, the court held that such knowledge was “nothing more than evidence that unknown 

members of the aircraft industry might eventually rely on [the defendant’s] airworthiness 

approval tag.” Id. at 840. Such evidence, the court held, was not the “proof . . . of an especial 

likelihood that the particular plaintiff would rely on the defendant’s representations” required 

under Texas law. Id. 

 The holding of Baleares Link forecloses Plaintiffs’ fraud theory regarding Cessna’s 

testing and certification of the C208B for operations in icing conditions.6

 At the time Cessna 

conducted its test flights and submitted its data to the FAA, it knew, at most, that some unknown 

pilots might eventually rely on the plane’s certification when flying into known icing conditions. 

 

6

 A federal court ordinarily follows an intermediate appellate court’s decision, unless convinced by other persuasive 

information that the state supreme court would decide otherwise. See Norwood v. Raytheon Co., 414 F. Supp. 2d 

659, 662-63 (W.D. Tex. 2006) (citing Barfield v. Madison County, 212 F.3d 269, 272 (5th Cir. 2000)). To 

determine what the highest state court would decide, the federal court may consider “analogous decisions, 

considered dicta, scholarly works and any other reliable data.” Id. at 663 (quoting Hollis, 232 F.3d at 465). 

Case 3:05-cv-00015-M Document 139 Filed 12/01/11 Page 23 of 35 PageID 5885
Page 24 of 35

As in Baleares, such knowledge does not constitute proof of an especial likelihood that Morris 

and Fleck would rely on the representations made by Cessna to the FAA. Thus, there is no 

genuine issue of material fact as to Cessna’s intent to induce Morris and Fleck to rely on 

Cessna’s representations to the FAA or certification for flight into icing conditions as disclosed 

in the C208B’s operating manual. 

 Similarly, Plaintiffs have failed to demonstrate the existence of a fact issue regarding 

their other theory of fraud. Cessna cites the deposition testimony of Steve McNew, the Cessna 

training administrator who created the charts in question, in which he states that the values in the 

charts were intended to be demonstrative only, picked at random simply to demonstrate the 

effect of ice accumulation on an aircraft’s performance. (App. to Def.’s Br. Supp. Mot. Summ. 

J. 375–76, 379, 382 [hereinafter Def.’s MSJ App.].) Further, Paul Pellicano, an aerospace 

engineer in the Small Airplane Directorate of the FAA, who reviewed the charts as part of a 

National Transportation Safety Board (NTSB) review, stated in his declaration that he 

considered the charts to be demonstrative and never relied on them as providing factual 

information. (Def.’s MSJ App. 365.) 

 The Plaintiffs offer no evidence contradicting McNew’s or Pellicano’s statements, but 

only offer Morris’s testimony that he attended one of the training courses where the charts were 

displayed. (App. to Pls.’ Mem. Opp’n Def.’s Mot. Summ. J. 201 [hereinafter Pls.’ App.].) Even 

assuming that such evidence creates a fact issue as to Morris’s reliance on the chart, it does 

nothing to rebut the evidence produced by Cessna showing the chart was never intended to 

induce such reliance but was instead intended merely as a demonstrative aid. The Plaintiffs, 

therefore, have failed to adduce evidence proving the existence of a genuine dispute of material 

fact as to Cessna’s intent to induce Morris and Fleck’s reliance on the chart prepared by McNew. 

Case 3:05-cv-00015-M Document 139 Filed 12/01/11 Page 24 of 35 PageID 5886
Page 25 of 35

The undisputed evidence proves that reliance on the charts is unjustifiable as a matter of law. 

See Ernst & Young, L.L.P. v. Pac. Mut. Life Ins. Co., 51 S.W.3d 573, 580 (Tex. 2001) 

(addressing the intent element of fraud and stating that “the claimant’s reliance must be 

‘especially likely’ and justifiable”). 

 Because Cessna has shown the absence of a genuine issue of material fact as to both of 

Plaintiffs’ common law theories, it is entitled to summary judgment on those claims. 

C. Punitive Damages 

 Cessna next argues that it is entitled to summary judgment on Plaintiffs’ claim for 

punitive damages. Under Texas law, punitive damages may be awarded only if a plaintiff proves 

by clear and convincing evidence that the harm for which the plaintiff seeks recovery is the result 

of fraud, malice, or gross negligence. Tex. Civ. Prac. & Rem. Code Ann. § 41.003 (West, 

Westlaw through 2011 Sess.). Since Cessna is entitled to summary judgment on Plaintiffs’ fraud 

claims, only malice and gross negligence remain as possible bases for an award of punitive 

damages. 

 Texas law defines malice as “a specific intent by the defendant to cause substantial injury 

or harm to the claimant.” Id. § 41.001(7). Gross negligence consists of two elements, one 

objective and one subjective. The objective element requires that the act or omission complained 

of be one “which when viewed objectively from the standpoint of the actor at the time of its 

occurrence involves an extreme degree of risk, considering the probability and magnitude of the 

potential harm to others.” Id. § 41.001(11)(A). The subjective element of gross negligence 

requires that the act or omission be one “of which the actor has actual, subjective awareness of 

the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or 

welfare of others.” Id. § 41.001(11)(B). 

Case 3:05-cv-00015-M Document 139 Filed 12/01/11 Page 25 of 35 PageID 5887
Page 26 of 35

 Cessna argues that it cannot be liable for punitive damages for malice or gross negligence 

because it complied with all applicable regulatory standards for aircraft design and safety, as 

evidenced by the type certificate issued by the FAA. The Plaintiffs contend that regulatory 

compliance does not preclude an award of punitive damages and, anyway, that Cessna did not 

comply with federal regulations in testing and certifying the C208B for operation in icing 

conditions. 

 Cessna does not cite any Texas cases, and the Court is aware of none, holding that 

regulatory compliance forecloses an award of punitive damages as a matter of law. The only 

Texas case Cessna cites is Miles v. Ford Motor Co., 922 S.W.2d 572 (Tex. App.—Texarkana 

1996), rev’d in part on other grounds, 967 S.W.2d 377 (Tex. 1998). But in Miles, the Texas 

Court of Appeals expressly did not decide whether regulatory compliance alone “should bar 

liability for punitive damages,” and instead held only that the evidence of the defendant’s 

regulatory compliance, “coupled with the other evidence showing that it made a careful study 

and decision on the safety of [its product], makes the jury findings of gross negligence and 

malice unsupported by factually sufficient evidence.” Id. at 589 n.7. 

 The only other case cited by Cessna on the issue is Kolstad v. American Dental Ass’n, 

527 U.S. 526 (1999), in which the Supreme Court held that an employer’s good faith efforts to 

comply with Title VII precluded an award of punitive damages under that statute. Id. at 544. 

However, Kolstad dealt with a statutory provision that provides for an award of punitive 

damages where an employer engaged in discriminatory practices “with malice or reckless 

indifference to the federally protected rights of an aggrieved individual.” 42 U.S.C. § 

1981a(b)(1) (2006) (emphasis added). As the Court noted, “[t]he terms ‘malice’ or ‘reckless 

indifference’ pertain to the employer’s knowledge that it may be acting in violation of federal 

Case 3:05-cv-00015-M Document 139 Filed 12/01/11 Page 26 of 35 PageID 5888
Page 27 of 35

law.” Kolstad, 527 U.S. at 536. Thus, good faith efforts to comply with Title VII bar an award 

of punitive damages not because regulatory or legal compliance generally bars such awards, but 

because Title VII’s punitive damages provision focuses on knowledge of the law. Thus, 

Kolstad’s reasoning has no application to this case. 

 Although the Fifth Circuit has not addressed the effect of regulatory compliance on an 

award of punitive damages under Texas law, the old Fifth Circuit addressed the issue under 

Florida law in Dorsey v. Honda Motor Co., 655 F.2d 650 (5th Cir. 1981). In reversing the 

district court’s decision to overturn a jury’s award of punitive damages, the Fifth Circuit cited 

authorities from several jurisdictions, stating, 

Generally speaking, compliance with regulatory standards may be admissible on 

the issue of care but does not require a jury to find a defendant's conduct 

reasonable. [The defendant] offers no persuasive reason why compliance will as 

a matter of law be merely admissible on the issue of whether the defendant's 

conduct is reasonable but an absolute defense on the issue of whether its conduct 

is willful, reckless, or outrageous. 

Id. at 656 (citations omitted) (citing, among others, Restatement (Second) of Torts § 288C; W. 

Prosser, Handbook on the Law of Torts § 36, at 203–04 (4th ed. 1971)). 

 Texas law provides that “compliance with regulatory standards does not necessarily 

absolve a manufacturer from ordinary liability for product defects or negligence.” Miles, 922 

S.W.2d at 589 n.7. Like the defendant in Dorsey, Cessna has offered “no persuasive reason why 

compliance will as a matter of law be merely admissible on the issue of whether the defendant's 

conduct is reasonable but an absolute defense on the issue of whether its conduct is [malicious or 

grossly negligent].” Dorsey, 655 F.2d at 650. Thus, proof of regulatory compliance does not 

foreclose, as a matter of law, an award of punitive damages. 

 Even so, the Fifth Circuit has repeatedly interpreted Texas law to hold that “[c]ompliance 

with government safety standards constitutes strong and substantial evidence that a product is not 

Case 3:05-cv-00015-M Document 139 Filed 12/01/11 Page 27 of 35 PageID 5889
Page 28 of 35

defective.” Lorenz v. Celotex Corp., 896 F.2d 148, 150 (5th Cir. 1990) (quoting Gideon v. 

Johns-Manville Sales Corp., 761 F.2d 1129, 1144 (5th Cir. 1985)). Furthermore, although the 

court in Mills did not hold that compliance with regulatory standards conclusively foreclosed a 

punitive damage award, the court did hold that the defendant’s reliance on and compliance with 

government standards in part justified reversing the jury’s finding that the defendant acted with 

gross negligence and malice in designing, manufacturing, and marketing the product in 

question—a seatbelt restraint system: 

When a seller relies in good faith on the current state of the art in safety concerns, 

and on conclusions by the governmental agencies charged with administering 

safety regulations in the area of its product that the product is not unreasonably 

dangerous, it cannot be said to have acted with an entire want of care showing 

conscious indifference to the safety of the product users, or to have acted with 

conscious indifference to an extreme degree of risk. Nor can it be said that the 

seller acted “with a flagrant disregard for the rights of others and with actual 

awareness . . . that the act will, in reasonable probability, result in human death 

[or] great bodily harm.” 

Mills, 922 S.W.2d at 589 (emphasis added). The court went on to note that “what sets gross 

negligence and malice apart from ordinary negligence is the culpable mental state of the 

defendant.” Id. Finding no evidence of such a mental state, the court held that the jury findings 

on gross negligence and malice were not supported by factually sufficient evidence and against 

the great weight and preponderance of the evidence, reversing and remanding the issues for a 

new trial. Id. at 590. 

 The holdings of the Fifth Circuit and the Texas Court of Appeals lead the Court to 

conclude that while evidence of regulatory compliance does not foreclose an award of punitive 

damages as a matter of law, such evidence may demonstrate the absence of a genuine dispute of 

material fact as to gross negligence and malice, thus obligating the nonmovant to produce 

evidence proving that a genuine dispute of material fact exists. 

Case 3:05-cv-00015-M Document 139 Filed 12/01/11 Page 28 of 35 PageID 5890
Page 29 of 35

Here, Cessna has satisfied its burden as a matter of fact and law. As evidence of its 

regulatory compliance, Cessna offers the type certificate for the C208B, issued October 6, 1986. 

(Def.’s MSJ App. 1092, 1095.) A manufacturer like Cessna receives a type certificate only after 

the FAA Administrator determines that the aircraft in question “meets the applicable 

airworthiness, noise, fuel venting, and exhaust emission requirements.” 14 C.F.R. § 21.247. 

Cessna also relies on the declaration of Paul Pellicano, an aerospace engineer for the FAA who 

participated in an FAA evaluation of the standards used to certify the C208B for flight into 

known icing conditions. (Def.’s MSJ App. 366.) Pellicano declares that in 1997 and 2004, the 

FAA reviewed the certification data for the C208B for flight into known icing conditions and, 

both times, found that it had been properly certified under the standards that existed at the time 

of certification. (Id. at 366–67.) Pellicano further declares that “[a]t no time has the FAA 

determined that the [C208B] was improperly certified for flight into known icing conditions 

under the standards that existed at the time of certification.” (Id. at 368.) 

In response, Plaintiffs argue that the C208B was not properly certified for flight into 

known icing conditions. Plaintiffs rely on the fact that Cessna did not use a Forward Scattering 

Spectrometer Probe (FSSP) to measure water-droplet diameter during test flights, which is a 

variable necessary to test an aircraft for flight into known icing conditions. See14 C.F.R. pt. 25, 

App. C. The test aircraft was equipped with an FSSP, but it was not working on the day of the 

test flights. Despite knowing that the FSSP was not operational, Cessna conducted the test 

flights anyway. Plaintiffs also cite the deposition of William J. Rieke, a former NASA test pilot 

who flew aircraft in icing conditions. (Pls.’ App. 192.) Rieke testified that during his career at 

NASA he never conducted any icing evaluation flights without an FSSP and that NASA would 

cancel such a flight if the FSSP was not working. (Id.) Finally, Plaintiffs point to the deposition 

Case 3:05-cv-00015-M Document 139 Filed 12/01/11 Page 29 of 35 PageID 5891
Page 30 of 35

testimony of Douglas R. Herlihy, the former Investigator-in-Charge with the NTSB, who 

testified that estimating water-droplet diameter without an FSSP was not, to his knowledge, an 

approved method of determining drop diameter at the time the C208B was certified, and that 

such estimation resulted in an inaccurate determination that the aircraft met all the prerequisites 

for certification. (Pls.’ App. 194.) 

The Plaintiffs argue that Cessna’s icing test flights were inadequate for another reason; 

that they did not achieve the required exposure to “liquid water content.” Specifically, Plaintiffs 

argue that “on three of the six test flights the liquid water content was well below the required 

exposure level,” (Pls.’ Mem. Opp’n Def.’s Mot. Summ. J. 31, ECF No. 93 [hereinafter Pls.’ 

Br.]), citing the test flight report Cessna submitted to the FAA and the deposition of Robert Rice, 

one of Cessna’s test pilots. (Pls.’ App. 37, 55.) 

Finally, Cessna relies on the testimony of Cessna’s former designated option authority 

administrator, Phillip Hendrick, who testified in his deposition that he would rely on Cessna’s 

test pilots to obtain correct instrumentation, facilities, and equipment for test flights, without 

dictating how test flight results were reached. (Id. at 58.) 

However, contrary to Plaintiffs’ argument and Mr. Herily’s testimony that FAA 

regulations required the use of an FSSP to measure water-drop diameter, the FAA Advisory 

Circular governing aircraft ice protection that was in effect when the C208B was certified 

specifically states that other methods of determining droplet size were acceptable: 

The flight test aircraft should have instrumentation to determine water content or 

droplet size or a means of determining ice accretion rate and the extent of 

impingement from which these parameters can be established. . . . Drop size can 

be approximated from the extent of impingement on any shape with known 

impingement characteristics or by other acceptable means.” 

(App. to Def.’s Reply Br. Supp. Mot. Summ. J. 38 [hereinafter Def.’s Reply App.] (emphasis 

Case 3:05-cv-00015-M Document 139 Filed 12/01/11 Page 30 of 35 PageID 5892
Page 31 of 35

added).) In Cessna’s test flight report, Cessna’s test pilots noted that Cessna used the most 

conservative possible estimate of droplet diameter and that “actual [droplet diameter], based on 

wing leading edge impingement limits and post [sic] experience, was larger.” (Def.’s MSJ App. 

41.) In light of this evidence, combined with the FAA’s own determinations, at the time of 

certification and after two separate reviews, that the C208B was properly certified, no reasonable 

jury could conclude that Cessna did not comply with FAA regulations when it conducted icing 

test flights without an FSSP. 

 As for the Plaintiff’s contention that only three of the six test flights achieved the 

required liquid water content, Plaintiffs point to no evidence that anything more is required for 

compliance with FAA regulations. Cessna disclosed the results of all six flights to the FAA in its 

flight test report, and the FAA determined that the report justified granting Cessna a type 

certificate. Likewise, Plaintiffs point to nothing showing that Hendrick’s limited role in 

directing the test flights demonstrates non-compliance with FAA regulations. 

 In sum, Cessna has produced evidence showing that it complied with all federal 

regulations in testing and certifying the C208B for flight into known icing conditions, and the 

evidence adduced by Plaintiffs is insufficient to create a question of fact as to such compliance. 

Nevertheless, independent of the issue of regulatory compliance, Plaintiffs have produced 

evidence of the culpable mental state required to survive summary judgment on the issue of 

gross negligence. Cessna equipped its test aircraft with an FSSP, demonstrating its own belief in 

its usefulness in testing for icing. Furthermore, Rieke’s testimony about NASA’s practice of 

never test flying an aircraft for performance in icing conditions without an FSSP weighs in favor 

of permitting Plaintiffs to present the issue to the jury. In other words, while Plaintiffs’ evidence 

may not ultimately prevail at trial, the Court cannot conclude at this juncture that no reasonable 

Case 3:05-cv-00015-M Document 139 Filed 12/01/11 Page 31 of 35 PageID 5893
Page 32 of 35

jury could conclude that Cessna was grossly negligent or malicious in testing and certifying the 

C208B for flight into known icing conditions. Therefore, Cessna is not entitled to summary 

judgment on Plaintiffs’ request for punitive damages. 

D. Breach of Warranty 

 Cessna also argues that it is entitled to summary judgment on Plaintiffs’ breach of 

warranty claims. The Plaintiffs allege that Cessna made and breached certain express and 

implied warranties regarding the C208B. Cessna argues that such claims are barred by the 

statute of limitations. Texas law provides a four-year statute of limitations for breach of 

warranty claims, whether express or implied. Tex. Bus. & Com. Code § 2.725(a) (West, 

Westlaw through 2011 Sess.). The limitations period for an express or implied breach of 

warranty claim begins to run at the time of delivery. Id. § 2.725(b); Am. Tobacco Co. v. 

Grinnell, 951 S.W.2d 420, 435 (Tex. 1997). 

Cessna offers evidence showing that the plane flown by Morris and Fleck was delivered 

to Federal Express on October 14, 1987, more than twenty years before this lawsuit was filed. 

(Def.’s MSJ App. 1102.) The Plaintiffs do not dispute this evidence; in fact, they do not respond 

to Cessna’s arguments on this point at all. Based on Cessna’s summary judgment evidence, 

there is no genuine dispute that the statute of limitations on Plaintiffs’ warranty claims has run. 

Therefore, Cessna is entitled to summary judgment on those claims as well. 

E. Joint Enterprise Defense 

 Lastly, Cessna moves for summary judgment on its affirmative defense of joint 

enterprise. Cessna alleges that Morris and Fleck were engaged in a joint enterprise when 

conducting the check flight and, therefore, any negligence on the part of one should be imputed 

to the other. The essential elements of a joint enterprise under Texas law are (1) an agreement, 

Case 3:05-cv-00015-M Document 139 Filed 12/01/11 Page 32 of 35 PageID 5894
Page 33 of 35

express or implied, among the members of the group; (2) a common purpose to be carried out by 

the group; (3) a community of pecuniary interest in that purpose, among the members; and (4) an 

equal right to a voice in the direction of the enterprise, which gives an equal right of control.” St. 

Joseph Hosp. v. Wolff, 94 S.W.3d 513, 530 (Tex. 2002) (quoting Shoemaker v. Whistler's Estate, 

513 S.W.2d 10, 16–17 (Tex 1974) (quoting Restatement (Second) of Torts § 491 cmt. c (1965))). 

Cessna asserts that there is no genuine dispute of fact as to any of these elements and that, 

therefore, it is entitled to summary judgment on its joint enterprise defense. The Plaintiffs 

challenge elements two, three, and four, arguing that a genuine dispute of fact exists as to each. 

Because the Court finds the third element—community of pecuniary purpose—dispositive, it 

does not address the other elements. 

 A community of pecuniary interest requires more than a common business or pecuniary 

interest. Wolff, 94 S.W.3d at 527. To satisfy the third element of joint enterprise, the pecuniary 

interest must be “one shared without special or distinguishing characteristics.” Id. at 531 

(internal quotation marks omitted). Further, the interest must be in the group’s common purpose. 

Id. at 528. 

 In St. Joseph Hospital v. Wolff, the Texas Supreme Court explained this element, using 

the relationship between franchisor and franchisee as an example. Id. at 527. Although both a 

franchisor and franchisee benefit from increased sales, their interests in the common purpose of 

selling their product have special or distinguishing characteristics: 

The franchisee benefits from receiving the income and any resulting profits 

generated by its sales and by the market value of his or her franchise resulting 

from its profitability. The franchisor benefits by receiving royalty payments from 

its franchisee based on those sales and by the enhanced value accruing to its 

franchise opportunities resulting from the financial success of the existing 

franchises. 

Id. Likewise, the court in Wolff noted that wholesalers and retailers do not share a community of 

Case 3:05-cv-00015-M Document 139 Filed 12/01/11 Page 33 of 35 PageID 5895
Page 34 of 35

pecuniary interest, despite their common interest in selling and marketing their products. Id.

 Here, Cessna argues that Morris and Fleck’s common purpose during their flight was to 

complete Morris’s FAA-required check ride. The alleged pecuniary interest they had in this 

common purpose was their continued employment with Baron. According to Cessna, 

performing the check ride was part of Morris’s and Fleck’s duties as Baron employees and, 

therefore, Morris and Fleck shared in a community of pecuniary interest in the purpose of 

completing Morris’s check ride. 

 Assuming, without deciding, that the common purpose shared by Morris and Fleck was 

completing the check flight, there was not a community of pecuniary interest among them in that 

purpose. While the duties of Fleck’s employment may well have included acting as check pilot 

for other Baron pilots to complete their annual check rides, it is undisputed that Morris needed to 

do more than “complete” his check ride to continue his employment as a pilot with Barron—he 

needed to successfully complete it in order to continue to serve as a pilot. In other words, had 

Morris and Fleck completed the check ride without incident, but Fleck determined that Morris 

did not pass, only Morris’s employment would have been in jeopardy. Morris and Fleck may 

have shared a common interest in completing the check ride, but Morris’s pecuniary benefit was 

rooted in his successfully completing it, while Fleck’s was not. Therefore, like the franchisor and 

franchisee discussed in Wolff, Morris’s and Fleck’s respective pecuniary interests had special and 

distinguishing characteristics. 

 Cessna has failed to demonstrate the absence of a genuine dispute of fact regarding the 

third element of its joint enterprise defense, and thus, it is not entitled to summary judgment on 

that defense. 

Case 3:05-cv-00015-M Document 139 Filed 12/01/11 Page 34 of 35 PageID 5896
Page 35 of 35

IV. CONCLUSION 

 For the reasons stated above, Cessna’s Motion for Summary Judgment is GRANTED in 

part and DENIED in part. Cessna has shown that there is no genuine dispute of material fact as 

to Plaintiffs’ fraud and breach of warranty claims, and the Court therefore grants summary 

judgment to Cessna on those claims. However, because the Court concludes that the FAAct does 

not preempt Plaintiffs’ products liability claims, Cessna is not entitled to summary judgment on 

those claims. Likewise, Cessna has not met its burden on the third element of its joint enterprise 

defense, so it is not entitled to summary judgment on that issue. Finally, Cessna has not 

established as a matter of law that Plaintiffs may not recover punitive damages. 

SO ORDERED. 

December 1, 2011. 

 

Case 3:05-cv-00015-M Document 139 Filed 12/01/11 Page 35 of 35 PageID 5897