Romero

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAFAYETTE DIVISION

ROBERT ROMERO CIVIL ACTION NO. 23-0442

VERSUS JUDGE S. MAURICE HICKS, JR.

WESTWIND HELICOPTERS MAGISTRATE JUDGE WHITEHURST

INC., ET AL.

consolidated with

JEREMY HOLLIER CIVIL ACTION NO. 23-0484

VERSUS JUDGE S. MAURICE HICKS, JR.

WESTWIND HELICOPTERS MAGISTRATE JUDGE WHITEHURST

INC., ET AL.

MEMORANDUM RULING

Before the Court is a Motion for Summary Judgment filed by Defendants Westwind

Helicopters, Inc. (“Westwind”) and Starr Indemnity and Liability Company (“Starr”)

(collectively, “Defendants”). See Record Document 62. Plaintiffs Jeremy Hollier (“Hollier”)

and Robert Romero (“Romero”) opposed. See Record Documents 67 & 69. Defendants

replied. See Record Document 73. For the reasons set forth below, Defendants’ Motion

for Summary Judgment (Record Document 62) is GRANTED IN PART and DENIED IN

PART.

FACTUAL BACKGROUND

This case arises from a helicopter crash that occurred on October 26, 2022, in the

Gulf of Mexico. See Record Document 62-1 at 7. At the time of the incident, Plaintiffs

Romero and Hollier were passengers aboard a Bell 407 helicopter (FAA Registration No.

N34BM) owned and operated by Defendant Westwind and piloted by James Bullock

(“Bullock”), a Westwind employee. See id. The helicopter was returning from the Ship

Shoal 349 offshore platform to Abbeville, Louisiana, when it crashed into the Gulf. See

id. at 7–8.

On October 12, 2022, two weeks before the flight, Bullock passed a Federal

Aviation Administration (“FAA”) Class 1 medical examination, which certified him as

medically fit to operate a commercial aircraft. See id. at 8. Westwind contends that the

company had no notice that Bullock had any health issues or symptoms that could have

predicted the medical emergency that occurred during flight. See id. According to

Westwind, the flight was uneventful until Bullock experienced a sudden and

unforeseeable medical incapacitation, causing the helicopter to descend and impact the

water. See id. However, Plaintiffs dispute this characterization.

Romero contends that he was seated next to Bullock during the flight and that

approximately 10-15 minutes after takeoff, Bullock stated that he had just blacked out and

indicated that he did not feel well. See Record Document 69 at 2. Romero asserts that he

repeatedly urged Bullock to land on a nearby platform or in the water, but Bullock

continued flying for another 10-15 minutes, during which he said, “I’m overheating” and

“I’m not going to make it.” See id. Romero states that Bullock’s body went limp, and the

aircraft descended rapidly into the Gulf. See id. at 2–4.

Both Plaintiffs survived the crash. See id. at 4. Plaintiffs assert they remained in

the water for approximately two hours before being rescued. See id. Plaintiffs further

allege that Westwind’s Emergency Locator Transmitter (“ELT”) failed to activate, delaying

notification to the U.S. Coast Guard and prolonging their exposure and injuries. See

Record Document 67 at 4–5.

Plaintiffs filed this action in the Sixteenth Judicial District Court, Iberia Parish,

Louisiana, asserting claims under Louisiana state law for negligence and vicarious

liability. See Record Document 1-1. Defendants removed the matter to this Court

pursuant to the Outer Continental Shelf Lands Act (“OCSLA”), 28 U.S.C. § 1331, and 28

U.S.C. § 1332. See Record Document 1.

Defendants moved for summary judgment (Record Document 62), arguing there

is no genuine issue of material fact as to any alleged breach of duty or causation and that

all claims are preempted by federal aviation law. Plaintiffs Romero and Hollier filed

separate oppositions (Record Documents 67 & 69), asserting genuine factual disputes

regarding Bullock’s in-flight conduct, Westwind’s maintenance of the ELT, and the

company’s delay in contacting rescue authorities. Defendants filed a reply (Record

Document 73), maintaining that Plaintiffs’ evidence is inadmissible and that federal law

exclusively governs all aspects of aviation safety.

LAW AND ANALYSIS

I. Summary of the Arguments

Defendants move for summary judgment, arguing that Plaintiffs’ negligence and

vicarious liability claims are preempted by federal law. See Record Document 62-1 at 9–

17. Defendants contend that the FAA occupies the field of aviation safety, leaving no

room for the application of Louisiana state law. See id. Specifically, Defendants argue

that the FAA comprehensively governs pilot medical certification and in-flight operations.

See id. Because Bullock held a valid First-Class Medical Certificate at the time of the flight

and no evidence suggests any regulatory noncompliance, Defendants maintain that all

claims premised on the pilot’s medical condition or pre-flight fitness must fail. See id. at

11–17.

Defendants further assert that federal law also governs in-flight operations,

including the pilot’s decision-making and conduct during the flight. See id. at 20–21.

Defendants contend that, because federal law defines the duty of care and the record

lacks evidence of any violation of that standard, summary judgment should be granted in

their favor. See id.

Plaintiffs Hollier and Romero oppose the motion, arguing that Louisiana state law

applies as surrogate federal law under OCSLA. See Record Documents 67 at 6, 69 at 12.

They contend that state negligence law may coexist with federal aviation regulations

because Louisiana law is not inconsistent with the FAA’s requirements. See Record

Document 67 at 6. Plaintiffs further assert that the FAA’s regulations do not address all

aspects of Defendants’ alleged negligence, particularly Westwind’s post-flight response,

including its delayed notification to the Coast Guard and the failure of the helicopter’s

ELT. See id. at 9–10.

In sum, Defendants assert that federal law exclusively governs pilot fitness and in-

flight operations, while Plaintiffs argue that Louisiana negligence law may supplement the

federal standards. See Record Documents 62, 67, & 69. The Court must determine (1)

whether OCSLA jurisdiction applies, (2) whether federal aviation law preempts state

negligence law for the various claims, and (3) whether there are any genuine issues of

material fact remaining.

II. Summary Judgment Standard

A court should grant a motion for summary judgment when the pleadings “show

that there is no dispute as to any material fact and that the movant is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317,

323-24 (1986). In applying this standard, the court should construe “all facts and

inferences in favor of the nonmoving party.” Deshotel v. Wal-Mart Louisiana, L.L.C., 850

F.3d 742, 745 (5th Cir. 2017); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

255 (1986).

The party moving for summary judgment bears the burden of demonstrating that

there is no genuine issue of material fact as to issues critical to trial that would result in

the movant's entitlement to judgment in its favor, including identifying the relevant portions

of pleadings and discovery. See Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir.

1995). Courts must deny the moving party's motion for summary judgment if the movant

fails to meet this burden. See id. If the movant satisfies its burden, however, the

nonmoving party must “designate specific facts showing that there is a genuine issue for

trial.” Id. (citing Celotex, 477 U.S. at 323). In evaluating motions for summary judgment,

courts must view all facts in the light most favorable to the nonmoving party. See

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). There is no

genuine issue for trial, and thus a grant of summary judgment is warranted, when the

record as a whole “could not lead a rational trier of fact to find for the non-moving party

....” Id.

III. Analysis

a. Applicable Law

Pursuant to OCSLA, this Court has subject matter jurisdiction over claims arising

out of activities involving the exploration, development, and production of minerals on the

outer continental shelf. See 43 U.S.C. § 1349(b)(1). The helicopter flight at issue

originated from Ship Shoal 349, an offshore platform engaged in energy production in the

Gulf of Mexico. See Record Document 62-1 at 7–8. Because the accident occurred during

a flight directly connected to offshore mineral operations, OCSLA jurisdiction is proper.

The parties dispute which law governs Plaintiffs’ claims. Defendants argue that the

FAA occupies the field of aviation safety, preempting the application of state negligence

law. See Record Document 62-1 at 11–17. Plaintiffs, however, contend that Louisiana

law applies as surrogate federal law under OCSLA because it is not inconsistent with

federal law. See Record Document 67 at 6.

In Grand Isle Shipyard, Inc. v. Seacor Marine, LLC, the United States Court of

Appeals for the Fifth Circuit explained that to determine whether state law applies as

surrogate federal law under OCSLA, courts apply a three-part test: “(1) The controversy

must arise on a situs covered by OCSLA (i.e. the subsoil seabed, or artificial structures

permanently or temporarily attached thereto). (2) Federal maritime law must not apply of

its own force. (3) The state law must not be inconsistent with Federal law.” 589 F.3d 778,

783 (5th Cir. 2009) (quoting Union Texas Petroleum Corp. v. PLT Engr., Inc., 895 F.2d

1043, 1047 (5th Cir. 1990)). Here, the situs and maritime elements are not in dispute. The

question is whether application of Louisiana negligence law would be inconsistent with

federal law.

Under 43 U.S.C. § 1333(a)(2)(A), the law of the adjacent state can apply under

OCSLA only when the state laws are “applicable and not inconsistent” with federal laws.

The United States Supreme Court in Parker Drilling Management Services, Ltd. v.

Newton, emphasized that only those state laws addressing issues not already governed

by federal law may be adopted as surrogate federal law. 587 U.S. 601, 609 (2019). The

Court explicitly stated that “to the extent federal law applies to a particular issue, state law

is inapplicable.” Id. at 610.

1. Bullock’s Pre-Flight Medical Fitness

The issue of pilot medical qualification is comprehensively governed by federal

law. Under 14 C.F.R. § 67, the FAA prescribes detailed medical standards for pilot

certification. Under 14 C.F.R. § 61.23(a)(1), a pilot operating an aircraft must hold a valid

First-Class Airman Medical Certificate. Pilots are required to undergo periodic evaluations

by Aviation Medical Examiners (“AMEs”) who are authorized to ensure pilots meet these

standards. AMEs specifically evaluate pilots for any history or likelihood of losing

consciousness, blacking out, fainting, or other episodes of incapacitation, like the one

experienced by Bullock. See 14 C.F.R. § 67.109. These regulations establish the

exclusive framework for determining a pilot’s medical fitness.

Congress can preempt state law under the Supremacy Clause of Article VI of the

Constitution. See U.S. Const. Art. VI, cl. 2. The type of preemption applicable here is

implied field preemption. Implied field preemption occurs when Congress intends to

occupy a given field, excluding state law from governing that same field. See

Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 300 (1988). Congress’s intent to

occupy the field can be inferred from the pervasiveness of federal regulation or when

state regulation would interfere with Congressional objectives. See id. Courts have

consistently recognized that the FAA occupies the field of pilot medical certification. See

Ventress v. Japan Airlines, 747 F.3d 716, 721 (9th Cir. 2014); see also French v. Pan Am

Express, Inc., 869 F.2d 1, 4 (1st Cir. 1989).

It is undisputed that Bullock obtained a valid FAA First-Class Medical Certificate

approximately two weeks before the accident. See Record Document 62-2 at 3. Plaintiffs

present no evidence that Westwind or Bullock violated any FAA medical requirement or

that any pre-flight medical issue was foreseeable. Because this area is fully regulated by

federal law and there is no genuine dispute as to compliance with those regulations, the

Court finds that Louisiana law does not apply to this aspect of Plaintiffs’ claims.

Accordingly, Defendants’ Motion for Summary Judgment is GRANTED regarding the

issue of Bullock’s pre-flight medical fitness.

2. In-Flight Operations by Bullock

Next, the Court must consider whether the in-flight operational conduct by Bullock

is preempted by federal law. Several courts have held that these provisions establish a

federal standard of care that displaces state tort standards for in-flight operations. In

Abdullah v. American Airlines, Inc., the Third Circuit explained that the FAA was created

in response to air crashes between civil and military aircrafts that were operating under

different flight rules. 181 F.3d 363, 368 (3d Cir. 1999). The FAA’s purpose was to regulate

all air safety and create a uniform framework. See id. at 368–72. For the FAA to serve as

the exclusive framework, Congress enacted laws governing “pilot certification, pilot pre-

flight duties, pilot flight responsibilities, and flight rules.” See id. at 369 (internal citations

omitted). Among those rules includes 14 C.F.R. § 91.3(a), which provides that the pilot in

command “is directly responsible for, and is the final authority as to, the operation of that

aircraft.” Additionally, 14 C.F.R. § 91.13(a) prohibits operation of an aircraft “in a careless

or reckless manner so as to endanger the life or property of another.”

The Abdullah court clarified that although the federal standard of care applies,

traditional state law remedies continue to apply for violations of the federal standards.

See 181 F.3d at 375. Thus, while federal law governs what constitutes negligent operation

of an aircraft, state tort law continues to govern who may be held liable and what remedies

are available. See id. Under the Third Circuit’s approach, if Plaintiffs prove that Bullock

breached the federal standard of care while acting within the course and scope of his

employment, Westwind may be held vicariously liable under Louisiana law. See La. Civ.

Code art. 2320.

The Ninth Circuit adopted similar reasoning to Abdullah in Ventress. 747 F.3d at

722. The Ninth Circuit held that “federal law preempts state law claims that encroach

upon, supplement, or alter the federally occupied field of aviation safety and present an

obstacle to the accomplishment of Congress's legislative goal to create a single, uniform

system of regulating that field.” See id. at 722–23.

This Court recognizes that it is not bound by the Third Circuit’s decision in

Abdullah, and that the federal circuit courts are not in complete agreement over this

question of law. Although the Fifth Circuit has not explicitly adopted or rejected the Third

Circuit’s approach in Abdullah, the Fifth Circuit has provided some guidance. In 1995, the

Fifth Circuit “undertook an en banc review of prior precedent and held, contrary to

Abdullah, that the FAA, as amended by the Airline Deregulation Act (“ADA”), preempts

state regulation of aircraft ‘services’ but not aircraft ‘operation.’” Skidmore v. Delta Air

Lines, Inc., 2000 WL 1844675, at *2 (N.D. Tex., 2000) (citing Hodges v. Delta Airlines,

Inc., 44 F.3d 334 (5th Cir. 1995)) (internal citations omitted). The Hodges court explained

that “services” would include bargained-for items like “ticketing, boarding procedures,

provision of food and drink, and baggage handling ….” 44 F.3d at 336. The court further

explained that federal preemption of state laws related to services of an air carrier “does

not displace state tort actions for personal physical injuries ….” Id. However, it is

noteworthy that the Hodges decision primarily revolved around the court’s interpretation

of an ADA provision requiring air carriers to maintain insurance, which is not applicable

to the present case. See id. at 337–38.

In Abdullah, the Third Circuit “explicitly acknowledged its disagreement with the

Hodges decision on the basic question of whether federal law preempts the entire field of

aviation safety from state regulation.” Skidmore, 2000 WL 1844675, at *3 (citing Abdullah,

181 F.3d at 372). The Fifth Circuit has not squarely addressed the issue presented to this

Court post-Abdullah, but it has acknowledged the Third Circuit’s position on the issue.

See Witty v. Delta Air Lines, Inc. 366 F.3d 380, 385 (5th Cir. 2004). In Witty, the Fifth

Circuit made a narrow finding that a failure to warn claim “must be based on a violation

of federally mandated warnings.” Id. However, the court rejected extending that decision

beyond the precise facts presented in that case. See id.

Based on the existing jurisprudence, this Court finds that the analysis in Hodges

best applies to the current situation. See 44 F.3d 334. Because Bullock’s conduct during

the flight would be considered operations rather than services, this claim is not preempted

by federal law. See id. at 336. Accordingly, Defendants’ Motion for Summary Judgment

(Record Document 62) is DENIED regarding preemption of the state law negligence claim

arising out of Bullock’s in-flight operational conduct.

b. Judicial Admission of Lack of Personal Knowledge

Defendants argue that Romero’s deposition testimony (Record Document 67-4)

and certain language in his state court Petition (Record Document 1-1) collectively

constitute binding judicial admissions of his lack of personal knowledge concerning the

cause of the helicopter crash. See Record Documents 62-1 at 19–20, 73 at 1–4.

Specifically, Defendants point to the Petition’s assertion that “[t]he [h]elicopter was in flight

after its initial ascent when, for reasons unknown at this time, began an immediate

descent from its elevation and started to spin uncontrollably.” See Record Document 62-

1 at 19 (quoting Record Document 1-1 at 4). Additionally, Defendants attached a portion

of Romero’s deposition testimony, which includes a line of questioning about a briefing

video before the flight. See Record Document 62-9. In response to a question about the

video, Romero responds that he does not remember anything. See id. at 12. According

to Defendants, these statements demonstrate that Romero lacks personal knowledge of

the facts underlying his negligence claims, thereby barring him from establishing liability.

See Record Document 62-1 at 19–20.

Plaintiffs respond that Defendants’ characterization of the record is misleading.

See Record Documents 69 at 2–21, 67 at 14. Plaintiffs have attached Romero’s full

deposition testimony. See Record Document 67-4. Plaintiffs argue that the alleged judicial

admission in the Petition referred to Romero lacking knowledge as to why Bullock went

unconscious and any other potential causes of the crash. See Record Document 69 at

20–21. Thus, Plaintiffs argue that Romero did not judicially admit to a lack of personal

knowledge. See id.

In Defendants’ Reply (Record Document 73), they argue that only the portion of

Romero’s testimony included in their Motion for Summary Judgment (Record Document

62-9) should be considered, rather than the full deposition submitted by Plaintiffs. See

Record Document 73 at 1. The Court first rejects Defendants’ contention that it cannot

consider the full deposition transcript submitted by Plaintiffs. Under Federal Rule of Civil

Procedure 56(c)(3), “[t]he court need consider only the cited materials, but it may consider

other materials in the record.” Once Plaintiffs filed the full transcript with their Opposition,

it became part of the summary judgment record. Thus, the Court can review the entire

deposition to ensure an accurate understanding of the witness’s testimony.

A judicial admission is a formal, deliberate, and unequivocal concession of fact

that is binding upon the party who makes it. See Martinez v. Bally’s La., Inc., 244 F.3d

474, 476 (5th Cir. 2001). Judicial admissions have “the effect of withdrawing a fact from

contention.” Id.

Having reviewed the full transcript, the Court finds that Defendants’ excerpt

misrepresents the context of Romero’s statement. When Romero said he did not

remember anything, he was referring only to his inability to recall the pre-flight safety

briefing video, not the events of the flight. See Record Document 67-4. The remainder of

his deposition includes specific, detailed recollections of events surrounding the crash.

See id. This testimony confirms that Romero possesses personal knowledge of relevant

facts. Accordingly, the Court finds no judicial admission based on his deposition

testimony.

The Court also rejects Defendants’ argument that the statement in the Petition1

constitutes a judicial admission of lack of personal knowledge. The statement simply

reflects that, at the time of filing, Romero lacked knowledge as to the precise cause of the

crash and the reason Bullock went unconscious. This language is not a deliberate or

unequivocal concession, and courts have never required that the plaintiff have full

knowledge of all facts when filing suit. Fed. R. Civ. P. 8(a). Thus, the Petition’s language

cannot be construed as a judicial admission negating Romero’s personal knowledge or

his right to pursue claims. Accordingly, Defendants’ Motion for Summary Judgment is

DENIED regarding any judicial admission by Romero.

c. Negligent Maintenance of the ELT

Plaintiffs allege that Westwind negligently maintained the helicopter’s ELT, which

allegedly failed to activate following the crash and delayed rescue. See Record Document

67 at 15. Defendants move for summary judgment, arguing that any claims relating to the

maintenance or performance of the ELT are preempted by federal law and that there is

no evidence of negligent maintenance. See Record Document 62-1 at 24. Additionally,

Defendants urge that Plaintiffs suffered no injury from the ELT malfunctioning. See id.

Plaintiffs argue that it is indisputable that the ELT malfunctioned, but they contend that

the reason behind the ELT’s failure to activate is a question for the jury. See Record

Document 67 at 15.

Under Hodges, claims surrounding the maintenance of an aircraft are not

preempted by federal law. See 44 F.3d at 337–39. Thus, the Court considers this claim

1 The statement being referenced is that “[t]he [h]elicopter was in flight after its initial ascent when, for

reasons unknown at this time, began an immediate descent from its elevation and started to spin

uncontrollably.” Record Document 1-1 at 4.

first under Louisiana law. The record contains no evidence that the ELT was improperly

maintained or that Westwind failed to comply with any applicable inspection or

maintenance requirements. Plaintiffs contend that although the ELT itself was never

recovered, circumstantial evidence, including inconsistencies and omissions in

Westwind’s FAA paperwork and maintenance logs, creates a genuine issue of material

fact as to whether the ELT was properly installed and maintained in accordance with

federal standards. See Record Document 67 at 16.

Plaintiffs point out that an FAA Form 337 was filed in 1999 documenting the

installation of a Pointer 3000-10 ELT but that no corresponding Form 337 was ever filed

when the ARTEX ELT (the ELT at the time of the crash) later replaced it. See Record

Document 67 at 16–17. Plaintiffs argue this omission violates FAA procedure and shows

that the ARTEX ELT was never properly installed, supporting an inference of negligent

maintenance. See id.

Westwind argues that no new Form 337 was required because the replacement of

one approved ELT model with another did not constitute a “major alteration.” See Record

Document 73 at 8. Under 14 C.F.R. § 1.1, a Form 337 is necessary only for major

alterations that “might appreciably affect the weight, balance, structural strength,

performance, powerplant operation, flight characteristics, or other qualities affecting

airworthiness.” The 2013 logbook entry states that the change produced a negligible

weight and balance difference, confirming it was not a major alteration. See Record

Document 64-5 at 17.2 The Court agrees with Defendants. Plaintiffs have provided no

2 The Court notes that although Record Document 64-5 is an Exhibit to Defendants’ Daubert Motion (Record

Document 64) and unrelated to the pending Motion for Summary Judgment (Record Document 62), the Court

can consider all documents in the record under Federal Rule of Civil Procedure 56(c)(3).

authority showing that a Form 337 was required for substitution of an approved ELT model

that did not materially alter the aircraft. Plaintiffs’ assertion that the absence of a Form

337 rendered the installation defective fourteen years later is unsupported.

Next, Plaintiffs contend that Westwind’s ELT inspection entries do not include the

language suggested by 14 C.F.R. § 43.11, which requires an entry to certify that work

was performed in accordance with the manufacturer’s standards. See Record Document

67 at 17. Westwind maintains that § 43.11 does not require inspection entries to quote or

reference the manufacturer’s manual verbatim. See Record Document 73 at 8. Westwind

argues that the regulation was satisfied by the ELT logbook entry stating that the unit was

inspected per § 91.207(d) and found to have “no defects.” Id. (citing Record Document

62-2 at 18). The Court finds no violation of § 43.11. The regulation requires a signed

statement that the inspection was performed and that the aircraft was found to be

airworthy or not, but it does not mandate a specific citation to a manufacturer’s manual.

See id. Even if the language were imperfect, Plaintiffs offer no evidence linking this

paperwork to the ELT’s non-activation.

Plaintiffs next make a similar argument to the one outlined above, asserting that

there was no reference to the ARTEX manufacturer’s manual when the ELT switch was

replaced. See Record Document 67 at 17. Once again, the Court does not find this

argument compelling. See 14 C.F.R. § 43.11. Plaintiffs introduce no evidence that the

switch replacement was improper or that it contributed to the ELT’s failure to transmit.

The Court finds that these documentation discrepancies are insufficient to establish that

negligent maintenance caused the ELT to fail.

Plaintiffs concede that the helicopter wreckage, including the ELT, remains lost at

sea. See Record Document 67 at 16. Without the device or any inspection records

indicating a defect, neither party can determine why the ELT failed to transmit a signal.

Plaintiffs nonetheless argue that the reason for the ELT’s failure presents a question for

the jury. See Record Document 67 at 18. The Court disagrees. A jury cannot speculate

as to facts that are wholly unsupported by evidence. Because there is no evidence of

negligent maintenance, summary judgment is warranted under Louisiana law.

Although Hodges holds that a negligent maintenance claim would be governed by

state law, Plaintiffs allege no facts and show no evidence tying the alleged negligent

maintenance to the crash. See 44 F.3d at 337–39. Instead, their argument effectively

asserts a broader claim that the ELT should have transmitted a distress signal and that

Westwind is liable because it did not. See Record Document 69 at 23–24. If the claim is

construed as more of a products liability type claim, then it would be preempted by federal

law, as federal law governs aircraft equipment. This Court concludes that summary

judgment would be proper regardless of whether state or federal law applies.

The installation and inspections of ELTs are governed by detailed federal

regulations. See 14 C.F.R. § 91.207. Under § 91.207(a)(2), the helicopter was required

to carry an approved ELT “in operable condition.” Additionally, this regulation requires

annual inspections for proper installation, battery corrosion, and signal strength. See id.

§ 91.207(d). These requirements form part of the FAA’s comprehensive scheme

regulating aircraft equipment. Notably, there is no federal regulation requiring that an ELT

actually transmit a distress signal upon impact.

In Witty, the Fifth Circuit held that a passenger’s failure to warn claim was impliedly

preempted because any duty to warn “must be based on a violation of federally mandated

warnings.” 366 F.3d at 385. The court explained that when the FAA has not imposed a

particular duty, a plaintiff cannot create one under state law without conflicting with the

federal scheme. See Id. The same reasoning applies here. Because the FAA’s

regulations do not require that an ELT successfully transmit after impact, Plaintiffs cannot

rely on state negligence law to impose such an obligation.

ELTs are designed to attempt activation upon impact, but federal authorities

acknowledge that they frequently fail to operate after severe or water impacts due to

antenna separation, submersion, or power loss. An ELT’s function is probabilistic, not

guaranteed. Accordingly, Defendants’ Motion for Summary Judgment is GRANTED with

respect to Plaintiffs’ claims alleging negligent maintenance or failure of the ELT.

d. Post-Crash Negligence

The facts surrounding Westwind’s post-crash conduct are as follows. At

approximately 5:10 p.m., the helicopter crashed, and Westwind’s Sky Connect Log

demonstrates a loss of contact with the helicopter. See Record Document 67-13. At

approximately 5:20 p.m., Westwind’s Sky Connect system issued an “overdue” alert after

losing communication with the helicopter. See Record Document 67-14. During the next

hour, Westwind personnel attempted to contact the pilot and aircraft through multiple

methods but received no response. At some time between 6:14 and 6:24 p.m., Westwind

notified the U.S. Coast Guard, which located the wreckage and began rescuing Plaintiffs

at about 6:36 p.m. See Record Documents 67 at 19, 69-4 at 3–4.

Plaintiffs allege that Westwind acted negligently by failing to promptly notify the

U.S. Coast Guard after losing contact with the helicopter. See Record Document 67 at

18–19. They contend that Westwind’s delay prolonged their exposure in the Gulf and

worsened their physical and psychological injuries. See id. Westwind contends that its

actions were reasonable and that it followed protocol under Westwind’s Emergency

Response Plan (“ERP”). See Record Document 62-1 at 25. Additionally, Defendants

contend that Plaintiffs cannot prove any post-impact injuries caused by the rescue efforts.

See id. The Court must first consider whether state or federal law governs the issue of

emergency response timing.

Under OCSLA, Louisiana negligence law applies as surrogate federal law unless

inconsistent with federal regulation. See 43 U.S.C. § 1333(2)(A); Grand Isle Shipyard,

Inc., 589 F.3d at 783. Under 14 C.F.R. § 135.79, air carriers and operators are required

to “timely” notify an FAA facility or search and rescue facility, “if an aircraft is overdue or

missing.” Section 135.79(a)(3) acknowledges that there will be some amount of time

“reestablishing communications.” However, these regulations do not specify the precise

amount of time within which an operator must notify rescue authorities after losing

communication. That determination is left to the operator’s judgment and ERP manuals.

Because there is no federal regulation specifying how soon an operator must notify

rescue authorities after losing contact, Louisiana state law will apply as a surrogate.

Accordingly, a negligence claim under Louisiana law requires the plaintiff to prove

five elements:

(1) the defendant had a duty to conform his or her conduct to a specific

standard of care (the duty element); (2) the defendant failed to conform his

or her conduct to the appropriate standard (the breach of duty element); (3)

the defendant's substandard conduct was a cause-in-fact of the plaintiff's

injuries (the cause-in-fact element); (4) the defendant's substandard

conduct was a legal cause of the plaintiff's injuries (the scope of liability or

scope of protection element); and, (5) actual damages (the damages

element).

Cosey On Behalf of Hilliard v. Flight Acad. of New Orleans, LLC, 365 So. 3d 76, 88 (La.

App. 4th Cir. 2020), writ denied, 312 So. 3d 1097 (La. 2021) (quoting Moore v. Choice

Found., 274 So. 3d 33, 37 (La. App. 4th Cir. 2019)). Louisiana law uses the reasonable

man standard to determine the duty element. See Cosey, 365 So. 3d at 89. Westwind’s

standard of care for this claim is a reasonable, ordinary prudent operator under similar

circumstances. There is little to no jurisprudence defining how long is “too long” for an

operator to notify emergency personnel once an aircraft becomes unresponsive.

Plaintiffs’ expert, David Downey (“Downey”), asserts that under Westwind’s ERP,

another helicopter should have been diverted to the unresponsive helicopter’s last known

location within 15 minutes after its estimated time of arrival (“ETA”). See Record

Document 64-2 at 23–24. Downey states that the ETA was 5:45 p.m. and that Westwind

did not dispatch its helicopter until approximately 6:13 p.m., a delay of about 13 minutes

beyond the ERP’s internal guideline. See id.

Assuming that Downey’s description of the ERP is accurate and that Westwind’s

13-minute delay constituted a breach of its internal procedures, Plaintiffs’ claim still fails

for lack of causation. See id. “Cause in fact is generally a ‘but for’ inquiry; if the plaintiff

probably would have not sustained the injuries but for the defendant's substandard

conduct, such conduct is a cause in fact.” Roberts v. Benoit, 605 So. 2d 1032, 1042 (La.

1991). Plaintiffs’ injuries are a result of the crash itself. They present no medical or expert

evidence that their injuries were caused or aggravated by Westwind’s helicopter being

dispatched approximately 13 minutes later than the timeframe described by Downey. See

Record Document 64-2 at 23–24.

Moreover, the record does not clearly establish whether Westwind’s aircraft or the

U.S. Coast Guard arrived at the scene first. What is clear is that the Coast Guard had

already been notified before Westwind’s helicopter arrived on scene. See Record

Document 64-2 at 6. Thus, any internal delay in Westwind’s dispatch could not have

materially affected the timing of the rescue efforts.

Plaintiffs’ remaining allegations regarding Westwind’s post-crash response are

vague and lack evidentiary support. See Record Documents 67 at 18–19, 69 at 23–24.

Plaintiffs assert that Westwind should have notified the Coast Guard sooner, but they do

not present regulations, jurisprudence, or any evidence of custom within the field of

aviation to support that assertion. Without evidence demonstrating that Westwind’s timing

violated an applicable standard of care and caused additional injury, Plaintiffs’ negligent

notification claim cannot survive. Accordingly, summary judgment is GRANTED on this

issue.

e. Negligent Briefing

Next, Plaintiffs allege that Westwind was negligent in failing to adequately brief the

passengers prior to takeoff. See Record Document 67 at 20. Specifically, Plaintiffs

contend that the safety card provided to them before the flight (Record Document 67-16)

was deficient because it did not instruct them on how to locate or activate the helicopter’s

ELT. See Record Document 67 at 20. Westwind argues that the sufficiency of safety

briefings is governed by federal aviation regulations, not state negligence standards. See

Record Document 62-1 at 22–24.

Under 14 C.F.R. § 135.117(a)(5)–(6), all passengers must be orally briefed on the

“location of survival equipment,” and “[i]f the flight involves extended overwater operation,

ditching procedures and the use of required flotation equipment ….” Along with this oral

briefing, there must be printed cards located in the aircraft for passengers to view and

read. See 14 C.F.R. § 135.117(e). This regulation states that each card must be

appropriate for the specific aircraft, contain a diagram showing the method of operation

of emergency exits, and “[c]ontain other instructions necessary for the use of

emergency equipment” on the aircraft. See id. at § 135.117(e)(1)–(3) (emphasis

added). However, this Court cannot find, and Plaintiffs have not cited, any law requiring

that passengers be briefed on how to manually activate an ELT.

Because the federal regulations specifically address the scope and content of

passenger safety briefings, this area is governed by federal law rather than Louisiana

negligence law. See Witty, 366 F.3d at 385. In Witty, the Fifth Circuit specifically stated

that “federal regulatory requirements for passenger safety warnings and instructions are

exclusive and preempt all state standards and requirements.” Id.

Because no federal regulation requires that passengers be briefed on how to

manually activate the ELT, and because Plaintiffs identify no evidence of a violation of

the briefing requirements set forth in § 135.117, their negligent briefing claim fails as a

matter of law. Westwind’s Motion for Summary Judgment (Record Document 62) on this

claim is GRANTED.

CONCLUSION

Based on the reasons explained above,

IT IS ORDERED that the Motion for Summary Judgment (Record Document 62)

filed by Defendants Westwind Helicopters, Inc. (“Westwind”) and Starr Indemnity and

Liability Company (“Starr”) (collectively, “Defendants’) is GRANTED IN PART and

DENIED IN PART.

IT IS FURTHER ORDERED that the Motion is GRANTED with respect to Plaintiffs’

claims involving the pre-flight medical fitness of pilot James Bullock (“Bullock”), negligent

maintenance of the ELT, post-crash negligence in notifying rescue authorities, and

negligent briefing. These claims are DISMISSED.

IT IS FURTHER ORDERED that Defendants’ Motion for Summary Judgment is

DENIED with respect to the in-flight operational conduct of Bullock and any argument

based on a judicial admission of Robert Romero lacking personal knowledge.

An order consistent with this ruling shall issue herewith.

THUS DONE AND SIGNED, in Shreveport, Louisiana, this 2nd day of December,

2025.

UNITED STATES DISTRICT JUDGE

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