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Click here for the full text of this decision FACTS:Delta Airline passenger Milton Witty sued Delta for negligence after he developed deep vein thrombosis on a flight from Monroe, La., to Hartford, Conn. In his diversity action, he claimed Delta should warn passengers of the risk of developing DVT, and that Delta was negligent in not providing more leg room, or allowing passengers to exercise their legs. The district court denied Delta’s motion to dismiss, which was based on preemption grounds. HOLDING:Reversed and rendered. The court agrees that a passenger’s claim for personal injury on a plane is not preempted by 49 U.S.C. �41713(b)(1) of the Airline Deregulation Act when it relates to services of an air carrier. There is no bright line between “services” and “operation or maintenance of aircraft,” and the terms may even overlap. The court concludes that “insofar as plaintiff Witty in the pending case alleges that Delta should have provided more leg room, we hold that such a requirement would inexorably relate to prices charged by airlines.” Since requiring more leg room would necessarily reduce the number of seats on the aircraft, such a requirement would impose a standard “relating to a price” under �41713(b)(1) be pre-empted. Though noting that it’s a “closer question,” the court rules that the failure to warn claim is also preempted, not by the ADA, but by the Federal Aviation Act, which addresses air safety. The FAA’s comprehensive regulatory scheme for airline safety evidences a congressional intent to preempt to occupy the whole field. Furthermore, state law that conflicts with the FAA could interfere with the achievement of a federal purpose. The FAA’s regulatory scheme cover airworthiness standards, crew certification, medical standards and aircraft operating requirements. There are regulations governing warnings and instructions, too. The court finds that these warnings and instructions are exclusive and preempt all state standards and requirements. “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. In this case, federal regulations do not require warnings to passengers about the risks of DVT or methods for preventing this condition. Delta therefore cannot be held liable for failing to provide warnings or instructions to Witty.” OPINION:Reavley, J.; Reavley, Davis and DeMoss, JJ.

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