FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

LOLA F. MARTIN, a minor, by and         
through her guardian ad litem,
CARRIE HECKMAN, an individual;
MALCOLM D.S. MARTIN, a minor,
by and through his guardian ad
litem, CARRIE HECKMAN, an
individual; WRYE MARTIN; CARRIE
HECKMAN, individuals,
                          Plaintiffs,
                  v.
MIDWEST EXPRESS HOLDINGS, INC.;               No. 07-55063
MIDWEST EXPRESS AIRLINES, INC.,
a/k/a MIDWEST AIRLINES; SKYWAY                 D.C. No.
                                            CV-03-04796-GAF
AIRLINES, a/k/a ASTRAL AVIATION,               OPINION
INC.,
   Defendants-third-party-plaintiffs-
                         Appellants,
                  v.
EBERHARD BRAUN; FAIRCHILD
DORNIER LUFTFAHRT BETEILINGUNGS
GMBH; FAIRCHILD DORNIER
GMBH; FAIRCHILD DORNIER
CORPORATION,
    Third-party-defendant-Appellees.
                                        
        Appeal from the United States District Court
           for the Central District of California
          Gary A. Feess, District Judge, Presiding




                             1429
1430           MIDWEST EXPRESS HOLDINGS v. BRAUN
              Argued and Submitted June 6, 2008
              Submission Deferred June 6, 2008
                Resubmitted February 9, 2009
                     Pasadena, California

                     Filed February 9, 2009

     Before: Alex Kozinski, Chief Judge, Carlos T. Bea,
     Circuit Judge, and Marilyn L. Huff,* District Judge.

               Opinion by Chief Judge Kozinski;
                  Concurrence by Judge Bea




  *The Honorable Marilyn L. Huff, United States District Judge for the
Southern District of California, sitting by designation.
             MIDWEST EXPRESS HOLDINGS v. BRAUN            1433




                         COUNSEL

John P. McNicholas, McNicholas & McNicholas, Los Ange-
les, California, for the plaintiffs.

Ralph S. LaMontagne, Jr., Shaw Terhar & LaMontagne, Los
Angeles, California, for the defendants-third-party-plaintiffs-
appellants.

Arthur I. Willner, Berger Khan Shafton Moss Figler Simon &
Gladstone, Los Angeles, California, for the third-party-
defendant-appellees.


                         OPINION

KOZINSKI, Chief Judge:

   We consider whether, and to what extent, the Federal Avia-
tion Act, 49 U.S.C. §§ 40101 et seq., preempts an airline pas-
senger’s personal injury claims.
1434          MIDWEST EXPRESS HOLDINGS v. BRAUN
                              Facts

   A pregnant woman fell from an airplane’s stairs, injuring
herself and her fetus. She sued the airline, Midwest Express,
and the airplane’s manufacturer, Fairchild Dornier and related
companies, alleging that the stairs were defectively designed
because they had only one handrail. Midwest Express settled
the claim for $8 million, and now seeks indemnity from the
manufacturer. Relying on Montalvo v. Spirit Airlines, 

(9th Cir. 2007), the manufacturer argues that the
Federal Aviation Act preempts the passenger’s personal
injury claims and, consequently, Midwest Express’ indemnity
claim.

                             Analysis

   [1] The Federal Aviation Act has no express preemption
clause. The personal injury claim here conflicts with no provi-
sion of the act or regulation promulgated under it. The manu-
facturer’s argument thus rests on implied field preemption.

   [2] The touchstone of preemption is congressional intent.
Cipollone v. Liggett Group, Inc., 

, 516 (1992).
To find field preemption here, we must infer that Congress
intended to exclude all state law personal injury suits from the
area of air travel, even though it didn’t say so. The FAA
betrays no such intention. It expressly preserves state reme-
dies, declaring “[a] remedy under this part is in addition to
any other remedies provided by law.” 49 U.S.C. § 40120(c).
Moreover, it requires airlines to maintain liability insurance
“sufficient to pay . . . for bodily injury to, or death of, an indi-
vidual or for loss of, or damage to, property of others, result-
ing from the operation or maintenance of the aircraft.” 49
U.S.C. § 41112. As the FAA doesn’t create a federal cause of
action for personal injury suits, see Bennett v. Southwest Air-
lines Co., 

(7th Cir. 2007), this clause can only
contemplate tort suits brought under state law.
              MIDWEST EXPRESS HOLDINGS v. BRAUN                1435
   Two amendments to the FAA added limited preemption
provisions, neither of which applies here. The Airline
Deregulation Act preempts laws and regulations “related to a
price, route, or service” of airlines. 49 U.S.C. § 41713. The
General Aviation Revitalization Act provides an eighteen-
year statute of repose for product liability claims against air-
plane manufacturers. 49 U.S.C. § 40101. As we explained in
Charas v. Trans World Airlines, Inc., the airline regulatory
acts “evidence[ ] congressional intent to prohibit states from
regulating the airlines while preserving state tort remedies that
already existed at common law.” 

, 1265 (9th
Cir. 1998); see American Airlines, Inc. v. Wolens, 

, 234 & n.9 (1995) (suggesting that the airline regulatory
statutes “leave[ ] room for personal injury claims”).

   [3] While the FAA did not displace all state tort law touch-
ing air travel, neither did it leave states free to impose tort lia-
bility on all aspects of airplane operations. Citing “the
pervasive nature of the scheme of federal regulation of air-
craft noise,” City of Burbank v. Lockheed Air Terminal, 

, 633 (1973), held that the FAA and the Noise Con-
trol Act preempted a noise ordinance prohibiting planes from
taking off between 11 p.m. and 7 a.m. Aircraft noise, the
Court reasoned, is inextricably linked to the movement of air-
craft, which is under exclusive federal control. As Justice
Jackson had earlier remarked, “[p]lanes do not wander about
in the sky like vagrant clouds. They move only by federal per-
mission . . . under an intricate system of federal commands.”
Northwest Airlines, Inc. v. Minnesota, 

(1944)
(Jackson, J., concurring).

   [4] Following Burbank, the circuits have generally ana-
lyzed FAA preemption by looking to the pervasiveness of
federal regulations in the specific area covered by the tort
claim or state law at issue. Claims regarding airspace manage-
ment, pilot qualifications and failure to warn have been
declared preempted. French v. Pan Am. Express, Inc., 

(1st Cir. 1989); Kohr v. Allegheny Airlines, Inc., 504
1436          MIDWEST EXPRESS HOLDINGS v. BRAUN
F.2d 400 (7th Cir. 1974); Witty v. Delta Air Lines, Inc., 

(5th Cir. 2004). But several defective product
claims, such as the claim here, have not. Cleveland v. Piper
Aircraft Corp., 

(10th Cir. 1993); Public Health
Trust of Dade County, Fl. v. Lake Aircraft, Inc., 

(11th Cir. 1993). See also Air Transp. Ass’n of Am. v. Cuomo,

(2d Cir. 2008) (“we have acknowledged that the
FAA does not preempt all state law tort actions”).

   [5] The Third Circuit, considering a failure to warn claim,
took a different approach. Rather than limiting its analysis to
regulations on warnings, the court decided that “federal law
establishes the applicable standards of care in the field of air
safety, generally, thus preempting the entire field from state
and territorial regulation.” Abdullah v. American Airlines,
Inc., 

, 367 (3d Cir. 1999). The savings and insur-
ance clauses, the court reasoned, only preserve state remedies,
while excluding all state standards of care. 

In
Montalvo v. Spirit Airlines, citing Abdullah, we stated that the
FAA “demonstrate[s] an intent to occupy exclusively the
entire field of aviation safety and . . . preempt all state law in
this field.” 

, 471 (9th Cir. 2007).

   [6] Considered as a whole, however, Montalvo cuts against
the manufacturer’s argument for broad FAA preemption.
Montalvo dealt with three state tort claims against an airline,
all based on passengers getting dangerous blood clots from
long flights in cramped 

. First, passen-
gers claimed that the airline was negligent because the crew
didn’t warn them about blood clots, or tell them how to lessen
their risk. 

we held, preempts this claim, and “all
state law on the subject of air safety.” 

  [7] Our analysis rested heavily on the Federal Aviation
Administration’s “pervasive regulations” of warnings to pas-
sengers. 

litany of warnings—seatbelts should
be worn low and tight around the hips; the seat cushion can
be used as a flotation device—is federally required. 

              MIDWEST EXPRESS HOLDINGS v. BRAUN              1437
14 C.F.R. § 121.571. The agency intended its list of warnings
to be 

. If every state could
supplement this list through tort law or legislation, there
would be so many warnings that the ones the agency pre-
scribed would be drowned out by the others. As the Fifth Cir-
cuit explained in Witty, “warnings by their nature conflict, in
the sense that the import of one warning is diluted by addi-
tional warnings that might be imposed under state 

. Therefore, the FAA preempts any state tort claim
based on a theory that the warnings required by the agency
are insufficient.

   [8] Relying on this section of Montalvo, the manufacturer
argues that the FAA preempts all personal injury claims by
airline passengers, except claims based on violations of spe-
cific federal regulations. However, this argument conflicts
with the second part of Montalvo, which considered a claim
that the seating configuration was too cramped, putting pas-
sengers at risk of blood clots. 

The passengers
didn’t allege that the seating violated a federal regulation, id.;
see 14 C.F.R. § 23.785, and yet we didn’t hold that the FAA
preempted the claim, which would follow from a broad read-
ing of the first section. Indeed, we didn’t consider FAA pre-
emption at all. Instead, we reversed the district court’s
holding that the Airline Deregulation Act preempted the claim
and remanded for consideration whether providing roomier
seating would significantly affect ticket prices or competition
between airlines—a required element for ADA 

.

   [9] In a third claim, the Montalvo plaintiffs alleged that the
airplane seats were defectively designed. The district court
held that the FAA impliedly preempted the claim because seat
designs were pervasively regulated, noting that “the FAA
Administrator has enacted a wealth of federal regulations gov-
erning the design, maintenance, structure and position of air-
craft seats.” In re Deep Vein Thrombosis Litig., 

at *14 (N.D. Cal. 2005). The plaintiffs did not appeal
1438          MIDWEST EXPRESS HOLDINGS v. BRAUN
that holding. Our analysis of Montalvo does not depend, as
the concurrence argues, on any analogy between the seating
design and configuration claims. Concurrence at 1142.
Rather, it springs from Montalvo’s different treatment of the
seating configuration and failure to warn claims. If Montalvo
had held that the FAA preempts all state law personal injury
claims, it would have been unnecessary to reverse the district
court’s dismissal of the seating configuration claim and
remand for further consideration of ADA preemption.

   Furthermore, the manufacturer’s broad reading of Mon-
talvo, precluding any claim not based on a violation of a spe-
cific federal regulation, is in tension with our en banc decision
in Charas. Charas considered several state law personal
injury claims based on aircrews’ negligent actions, such as
leaving luggage in the aisles and hitting passengers with the
beverage cart. 

Charas even considered a claim
similar to the one here, that the aircrew negligently allowed
a passenger to fall from a stairway with only one handrail. 

That passenger also brought the exact claim at
issue here, that the stair design was defective, but the district
court held that the claim was not preempted and the airline
did not appeal. 

ADA’s preemption provision
narrowly, we overruled several district courts, and two of our
own decisions, and held that Congress “did not intend to pre-
empt passengers’ run-of-the-mill personal injury claims,”
drawing no distinction between state remedies and state stan-
dards of care. 

1265. Although Charas did not
consider FAA preemption, it reversed several district court
and panel decisions for interpreting ADA preemption too
broadly. This holding would be moot if all the claims at issue
were preempted anyway by the FAA.

   The concurrence argues there is a federal standard of care
in all airplane personal injury cases, but that it is not exclu-
sively set by federal regulations. Instead, in areas without per-
vasive and relevant regulations, the federal standard should be
set by expert testimony on standard industry practices. Con-
             MIDWEST EXPRESS HOLDINGS v. BRAUN             1439
currence at 1445-47. But neither Montalvo nor Abdullah, nor
any language in the FAA, contemplates such a rule; Montalvo
does not mention expert testimony at all, and Abdullah sug-
gests that it could be used only for interpreting the relevant
federal regulations, not for setting a federal standard indepen-
dent from the regulations. 

. The
FAA itself makes no mention of federal courts developing a
federal common law standard of care for airplane personal
injury actions, and “[t]here is no federal general common
law.” Erie R.R. v. Tompkins, 

, 78 (1938); see gen-
erally Suzanna Sherry, Overruling Erie: Nationwide Class
Actions and National Common Law, 156 U. Penn. L. Rev.
2135, 2138 (2008) (advocating the demise of the Erie doctrine
for tort actions that impact national markets).

   [10] Montalvo, then, neither precludes all claims except
those based on violations of specific federal regulations, nor
requires federal courts to independently develop a standard of
care when there are no relevant federal regulations. Instead,
it means that when the agency issues “pervasive regulations”
in an area, like passenger warnings, the FAA preempts all
state law claims in that area. In areas without pervasive regu-
lations or other grounds for preemption, the state standard of
care remains applicable.

   [11] This conclusion accords with the decisions of other
circuits, refusing to find various defective product claims
impliedly preempted by the FAA in the absence of relevant
and pervasive regulations on the allegedly defective part. The
Tenth Circuit, in Cleveland v. Piper Aircraft Corp., held that
a claim that a plane was defectively designed because the
pilot had inadequate visibility was not preempted, although
the design violated no federal regulations and was approved
by the 

. And in Public Health Trust
of Dade County, Fl. v. Lake Aircraft, Inc., the Eleventh Cir-
cuit held that the FAA didn’t preempt a defective seat design

, 295. See also Greene v. B.F. Good-
rich Avionics Sys., Inc., 

, 788-89, 794-95 (6th
1440          MIDWEST EXPRESS HOLDINGS v. BRAUN
Cir. 2005) (citing Abdullah to find FAA preemption of a fail-
ure to warn claim, but applying a state law analysis to a claim
that a navigational instrument was defectively manufactured).

   The manufacturer further argues that defective product
claims are preempted by the federal certification process
required for every plane design. To certify a plane design, the
manufacturer must show that it meets the agency’s regula-
tions, and “that no feature or characteristic makes it unsafe.”
14 C.F.R. § 21.21. The regulations contain numerous specific
requirements for the designs, largely focused on preventing
crashes and limiting the seriousness of those that occur. See,
e.g., 14 C.F.R. §§ 25.341, 25.561. They also include a prohi-
bition on “design features or details that experience has
shown to be hazardous or unreliable.” 14 C.F.R. § 25.601.
The agency generally uses sections 25.601 and 21.21 when
implementing “special conditions,” alternative requirements
for plane designs with “novel or unusual” components “not
envisioned” by the other regulations. 73 F.R. 389-01; 72 F.R.
57842-01; see 14 C.F.R. § 21.16; but see 70 F.R. 76728-01
(declaring that a seat belt design does not comply with section
25.601). When a design does not include novel components,
the certification process simply implements the specific regu-
lations. See GATX/Airlog Co. v. United States, 

,
1171 (9th Cir. 2002). There’s no indication that the agency
has interpreted sections 25.601 and 21.21 as directing it to
pervasively regulate every aspect of plane design.

   [12] Airstairs are not pervasively regulated; the only regu-
lation on airstairs is that they can’t be designed in a way that
might block the emergency exits. 14 C.F.R. § 25.810. The
regulations have nothing to say about handrails, or even stairs
at all, except in emergency landings. No federal regulation
prohibits airstairs that are prone to ice over, or that tend to
collapse under passengers’ weight. The regulations say noth-
ing about maintaining the stairs free of slippery substances, or
fixing loose steps before passengers catch their heels and trip.
It’s hard to imagine that any and all state tort claims involving
             MIDWEST EXPRESS HOLDINGS v. BRAUN            1441
airplane stairs are preempted by federal law. Because the
agency has not comprehensively regulated airstairs, the FAA
has not preempted state law claims that the stairs are defec-
tive.

   For the reasons set forth in the accompanying memoran-
dum, the airline did not waive its right to indemnity through
the sales contract.

  REVERSED.



BEA, Circuit Judge, concurring:

   I agree the district court’s order dismissing the complaint
should be reversed, but to another result. This is because I
read Montalvo v. Spirit Airlines, 

(9th Cir. 2007),
quite differently than does the majority. In Montalvo there
were two claims on appeal: (1) a claim the airline negligently
failed to warn passengers—including the plaintiffs—of the
risk of deep vein thrombosis, caused by prolonged sitting dur-
ing flight, and (2) a claim the airline negligently configured
placement of the airplane seating so to cramp passenger
movements and lead to the onset of deep vein thrombosis.
The Montalvo court affirmed the district court’s order dis-
missing the plaintiffs’ failure to warn claim on the ground
such claims are preempted by the Federal Aviation Act
(“FAA”) due to pervasive federal regulations governing air-
plane warnings. The court reversed the district court’s order
dismissing the plaintiffs’ negligent seating configuration
claim and remanded that claim to the district court so it could
analyze whether seating configuration affects ticket prices,
which would in turn render the claim preempted under the
Airline Deregulation Act.

  The majority concludes that had the Montalvo panel
thought the negligent seating configuration claim was pre-
1442          MIDWEST EXPRESS HOLDINGS v. BRAUN
empted under the FAA, and not just possibly preempted under
the Airline Deregulation Act, it would have dismissed that
claim outright on FAA preemption grounds instead of
remanding it. Rather, says the majority, because the Montalvo
court did not dismiss the negligent seating configuration
claim as preempted by the FAA, negligent seat design claims
generally are not preempted by the FAA. And, if negligent
seat design claims are not preempted by the FAA, how can
negligent stairway design claims be preempted? Neither seat
design nor stairway design are specifically called out by fed-
eral regulations in any way similar to passenger safety warn-
ings.

   I part with the majority as to Montalvo at two points. First,
in the majority’s major premise: that airline seat configuration
and seat design are analogous for purposes of determining
whether federal preemption exists. Second, that Montalvo
directs an implication that absent “pervasive” federal regula-
tions on seat design, no federal standard of care exists.

   First, that airline seat configuration and seat design are not
analogous and should be subject to different liability rules
makes some sense. Airline seat configuration is determined
by the airline; seat design is determined by the manufacturer.
The airlines have different business locations; they fly intra-
state as well as interstate. They can expect to be subject to
local notions of passenger safety. On the other hand, airplane
manufacturers design and manufacture similar seats for air-
planes sold throughout the country and overseas; they lack
knowledge of precisely where the airplane will end up or how
the airline buyer will configure the seats’ placement. Airplane
manufacturers should be able to rely on a uniform rule for
proper seat design and construction.

   Second, in Montalvo the plaintiffs brought not only a claim
for negligent configuration, but also one for negligent design
of the seats themselves. The district court dismissed the negli-
gent design claim as preempted by the FAA—and that ruling
                MIDWEST EXPRESS HOLDINGS v. BRAUN                     1443
was not appealed. See In re Deep Vein Thrombosis Litig., No.
04-1606, 

at *14 (N.D. Cal. Mar. 11, 2005).

   Accordingly, contrary to the majority’s view that Montalvo
implicitly decided there was no federal preemption of the neg-
ligent seat design claim, the lesson of Montalvo is that the
plaintiffs thought so little of the idea that federal law did not
preempt state theories of negligent design liability that they
chose to let dead dogs lie by not even attempting to resusci-
tate that claim by appeal. But note, there was no more “perva-
sive” federal regulation of seat design than there is of stairway
bannister design.

   Even if it did not decide the precise issue before us, how-
ever, Montalvo still provides the framework by which we ana-
lyze preemption of state law tort actions against airlines, and
I think the solution to this case lies in Montalvo’s plain text:
“[w]e adopt the Third Circuit’s broad, historical approach [in
Abdullah v. Am. Airlines, Inc., 

(3d Cir. 1999)].”

.

   Abdullah involved a negligence action for physical injuries
sustained by several airline passengers during severe in-flight
turbulence; the passengers alleged the airline failed to give
them adequate warning of the oncoming turbulence. There,
the Third Circuit held the FAA preempts only the standard of
care in state law tort personal injury causes of action, and
replaces each state’s standard of care with a single federal

. This preemption applies only to the
standard of care: the remaining tort elements of breach, causa-
tion, and damages are each governed by state law. 

  1
    The Supreme Court approved a framework similar to this in the nuclear
power plant safety regulation context. See Silkwood v. Kerr-McGee Corp.,

(1984). The Silkwood Court held that because, as here, the
Atomic Energy Act included language indicative of congressional intent
to preserve state law personal injury actions based on violations of nuclear
power plant safety standards, regulations promulgated by the Nuclear Reg-
ulatory Commission were the “exclusive authority” regarding “[nuclear
plant] safety standards,” but Congress did not otherwise preempt “state
tort remedies” such as punitive damages. 

(emphases added).
1444            MIDWEST EXPRESS HOLDINGS v. BRAUN
   The Abdullah and Montalvo courts were faced with areas
in which the FAA had relevantly and pervasively regulated,
such as airline warnings, and they found state law causes of
action preempted due to those relevant, pervasive regulations.
Not so here: in the field of aircraft design regulation, the FAA
directs only the conditions under which the government may
grant an aircraft design a “certificate” that permits production;
the FAA does not prescribe general standards the manufac-
turer must follow to exercise reasonable care in designing a
safe aircraft. See 14 C.F.R. § 21.21 (providing the government
may not issue a “certificate” allowing production unless the
FAA Administrator finds “no feature or characteristic” makes
the plane “unsafe for the category [of aircraft] for which certi-
fication is requested”)2; 14 C.F.R. § 25.810 (providing that if
airplane stairs also serve as an emergency exit, the govern-
ment may not grant a “certificate” unless the manufacturer
shows the stairs will function in case of an emergency).

   Thus, the question here is whether the Abdullah rule, which
establishes federal preemption of state standards of care in
state law personal injury actions against airlines, applies to
negligent design actions in which the FAA has not promul-
gated relevant regulations describing the particular obligations
of the airline. The majority holds the Abdullah rule does not
apply to such a situation, and that state law standards of care
   2
     This court has explained that 14 C.F.R. § 21.21 merely requires the
Federal Aviation Administrator to certify the plane is not unsafe based on
engineering data provided by the manufacturer which shows the plane
meets all of the other regulations promulgated under the FAA for airplane
design; it does not provide an independent general standard to judge the
safety of an airplane. See GATX/Airlog Co. v. United States, 

, 1171 (9th Cir. 2002) (“The first stage of [the airplane approval] pro-
cess is type certification, in which airplane manufacturers seek approval
of new aircraft designs. Under federal regulations, aircraft manufacturers
must analyze and test their new aircraft designs. Based on the resulting
engineering and test data, the FAA then determines the airworthiness of
those designs [pursuant to 14 C.F.R. § 21.21]. If the manufacturer demon-
strates that the design complies with federal regulations, the FAA issues
a type certificate.”).
                MIDWEST EXPRESS HOLDINGS v. BRAUN                      1445
govern.3 Some courts in the Third Circuit have reached a con-
clusion opposite to the majority’s, and have interpreted Abd-
ullah to hold that failure to allege a federal standard of care
that the carrier allegedly breached is a defect fatal to the com-
plaint. See, e.g., Landis v. U.S. Airways, No. 07-1216, 

(W.D. Pa. Mar. 18, 2008) (“Because the standard
of care imposed by state common law is preempted by the
FAA, and Landis has not otherwise set forth a federal stan-
dard of care alleged to have been breached, her claims against
U.S. Airways are properly dismissed.”).4

   However, as I read Abdullah, expressly adopted by Mon-

, the court contemplated district courts
would allow a factfinder to consider relevant FAA regulations
and, to the extent those regulations are unclear or non-
existent, expert testimony of common industry practices, as
relevant evidence of reasonable care under the circumstances,
so the factfinder might determine the applicable standard of
care. See 

see also, e.g., Elassaad v. Independence
Air, Inc., No. 05-2328, 

(E.D. Pa. Aug. 20,
2008) (dismissing, under Abdullah, a claim against an airline
for negligent failure to assist a passenger, on the grounds the
plaintiff did not show an absence of relevant FAA regulations
  3
     Contrary to the majority’s position, neither Abdullah nor Montalvo
contemplated state standards of care would apply in any circumstance. See

(“[W]e hold that federal law establishes the
applicable standards of care in the field of air safety, generally, thus pre-
empting the entire field from state and territorial regulation.”).
   4
     The majority asserts that a reading of Montalvo contrary to its own
would be “in tension” with our en banc ruling in Charas v. Trans World
Airlines, Inc., 

(9th Cir. 1998). Respectfully, I do not see
how this can be the case. Charas dealt with preemption of airline passen-
ger personal injury negligence claims, such as those for injuries due to
wayward drinks carts and falling luggage, under the Airline Deregulation
Act—a different statute than the FAA, the statute at issue here. We con-
cluded that Congress intended airline “services” to be economic in nature
for preemption to apply under the Airline Deregulation Act. In the present
case, unlike Charas and Montalvo, there is no contention on appeal that
the plaintiffs claims are preempted by the Airline Deregulation Act.
1446            MIDWEST EXPRESS HOLDINGS v. BRAUN
and “has not pointed to case law or expert testimony” that the
standard of care required the defendant “to offer assistance to
the plaintiff”). Indeed, in Abdullah the FAA had issued regu-
lations relevant to the standard of care—but the court never-
theless found “expert testimony on various aspects of aircraft
safety may be helpful to the jury” in identifying and applying
the correct standard of care created by those federal regulations.5

majority cites Erie R.R. v. Tompkins, 

, 78 (1938), for
the proposition there cannot be a federal standard of care for airline per-
sonal injury torts because, in diversity cases, “[t]here is no federal general
common law.” Erie was a railroad accident case that involved only state
common law negligence; it involved no claim of preemption based on any
Interstate Commerce Commission regulations regarding the design of rail-
car door latches or how to keep railcar doors from swinging open and hit-
ting nearby pedestrians. Here, on the other hand, we have a federal statute
(the FAA) that we have held partly displaces state law through preemption
of personal injury tort standards of care. 

; Mon-

. In such a case, Erie does not apply. See, e.g., Sola
Electric Co. v. Jefferson Electric Co., 

, 176 (1942) (“[T]he
prohibition of a federal statute may not be set at naught, or it benefits
denied, by state statutes or state common law rules. In such a case our
decision is not controlled by [the Erie rule].”). Rather, a federal court
hearing the dispute may—indeed, must—create gap-filling rules to effect
the federal statute involved. See, e.g., Ernest A. Young, Preemption and
Federal Common Law, 83 NOTRE DAME L. REV. 1639, 1642-43 (2008)
(“Federal common law comes in a number of different forms . . . . [W]hen
Congress leaves gaps in federal statutes—when it fails to specify a mea-
sure of damages for new federal claims, for example—it means for the
courts to fill in those gaps through federal common lawmaking.”).
   What is more, a state court addressing our issue in a case with no diver-
sity of citizenship would also be required to determine the relevant federal
standard of care—precisely the kind of analysis that takes place, for
instance, when a state court adjudicates an action under the Federal
Employers’ Liability Act. See, e.g., Texas & P. Ry. Co. v. Younger, 

, 559-560 (Tex. Civ. App. 1953) (“While suits under the Fed-
eral Employers’ Liability Act may be maintained in appropriate courts of
any state, [the state court must apply] the laws of the United States and
not . . . state laws.”).
   In other words, the majority is incorrect to assume the crucial question
is simply whether our jurisdiction lies in diversity. See Martha A. Field,
Sources of Law: The Scope of Federal Common Law, 99 HARV. L. REV.
                MIDWEST EXPRESS HOLDINGS v. BRAUN                       1447
   Here, we have a negligence6 case in which there are no reg-
ulations that dictate whether an airplane staircase must have
one or two handrails. As a negligence case, reasonable care
applies, and expert testimony (or FAA regulations, if there
were any) should be admitted so a factfinder might determine
what reasonable care means in airplane design at a nationwide
level. For instance, an expert may testify all other commercial
passenger airplane staircases designed in the United States use
two handrails; based on this testimony, a factfinder might well
conclude that using only one handrail was unreasonable and,
thus, negligent.

   This reading of Montalvo and Abdullah makes more sense
to me than the majority’s. Without federal preemption of the
standard of care in personal injury tort actions, airlines and
airplane manufacturers would be subject to the standard of
care in whichever state their planes happen to be in (or over)
when the injury occurs; the majority’s rule essentially means
airlines and airplane manufacturers must prepare for fifty

881, 911 n.140 (1986) (“Occasionally, courts or commentators carelessly
or mistakenly suggest that Erie’s boundaries relate to the jurisdictional
basis of the particular lawsuit, stating that Erie applies in diversity cases
in federal courts. [Rather], ‘it is the source of the right sued upon, and not
the ground on which federal jurisdiction over the case is founded, which
determines the governing law.’ ”) (citations omitted, emphasis in original);
see also Maternally Yours v. Your Maternity Shop, 

, 540 n.1
(2d Cir. 1956) (“[T]he Erie doctrine applies, whatever the ground for fed-
eral jurisdiction, to any issue or claim which has its source in state law.
Likewise, the Erie doctrine is inapplicable to claims or issues created and
governed by federal law, even if the jurisdiction of the federal court rests
on diversity of citizenship.”) (citations omitted).
   6
     Although this action was originally brought by the injured plaintiff
under a strict liability theory, our case stems from a third party complaint
by Midwest Express seeking indemnity against Fairchild Dornier for neg-
ligent design of the aircraft. Midwest Express’s theory is that Fairchild
Dornier failed to employ reasonable care in designing the aircraft staircase
because, according to the allegations of the complaint, unlike most other
airplanes, the staircase here has one handrail instead of two.
1448            MIDWEST EXPRESS HOLDINGS v. BRAUN
kinds of liability. With federal preemption of the standard of
care, both airlines and airplane manufacturers, on the one
hand, and passengers, on the other, would have some manage-
able guidance regarding duties owed. Further, by allowing the
states to determine the elements of breach,7 causation,8 and,
most importantly, damages,9 the Abdullah approach allows
states to maintain individual policy priorities in line with Con-
gress’s intent to preserve state law remedies.

   Accordingly, I would hold Montalvo requires us to remand
this case to the district court to allow a factfinder to consider
evidence to determine the federal standard of care for negli-
gent stairway design, and state standards for breach, causa-
tion, and damages.




  7
     Whether the failure properly to design is excusable under the circum-
stances.
   8
     Whether the damages plaintiff claims may be offset totally or partially
by the plaintiff’s contributory or comparative fault.
   9
     Whether damages caps should be imposed for particular non-economic
claims and whether punitive damages should be allowed.
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