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Statement

Interest of the Amici

Introduction/Summary of Argument

Congress Did Not Intend to Preempt Plaintiff's Claim

Congress Expressly Preserved Plaintiff's Claims

The Safety Act's Express Preemption Provision

The Safety Act's Express Anti-Preemption Clause

The Safety Act's Legislative History

Standard 208

The Bottom Line

The Question of Implied Preemption Cannot Be Reached Because Congress Clearly and Expressly Preserved All Common Law Claims

Plaintiff's Claims Are Not Impliedly Preempted

Conclusion

Statement of the Question Presented

Did Congress intend General Motor's compliance with Federal Motor Vehicle Safety Standard 208 to exempt GM from liability under common law, even though the National Traffic and Motor Vehicle Safety Act of 1966 explicitly provides that "[c]ompliance with any Federal motor vehicle safety standard . . . does not exempt any person from any liability under common law?"

Answer of the court below: Yes.

Interest of the Amici

Trial Lawyers for Public Justice, P.C., Public Citizen, the Center for Auto Safety, and Consumers for Auto Reliability and Safety are national public interest and consumer organizations dedicated to, inter alia, advancing auto safety and consumer protection. All of the amici believe that the decision below contravenes Congress' intent and should be reversed.

Trial Lawyers for Public Justice, P.C. "(TLPJ"), is a national public interest law firm dedicated to using tort and trial law to advance the public good. Through involvement in precedent-setting and socially significant litigation, TLPJ seeks to ensure that tort law fully serves its dual purpose -- compensating those injured by and deterring wrongful conduct. TLPJ is gravely concerned that, if the tort system is closed to innocent crash victims like the plaintiffs through improper application of the preemption doctrine in this case, neither of these purposes will be served. TLPJ has directly represented crash victims in litigation raising federal preemption issues before numerous state and federal appeals courts, including the Supreme Court of the United States. It has participated as an amicus curiae in cases presenting similar preemption issues in the Seventh, Tenth, and Eleventh Circuits, the Alabama Supreme Court, the New Hampshire Supreme Court, the Michigan Court of Appeals, and the Superior Court of Pennsylvania, where it participated as an amicus in both Gingold v. Audi-HSU-Auto Union, A.G., 389 Pa. Super. 328, 567 A.2d 313 (1989), and the instant case. In addition, TLPJ was co-counsel for plaintiffs in a case involving federal preemption under the Safety Act that was recently decided by the United States Supreme Court, Freightliner Corp. v. Myrick, 115. S. Ct. 1483 (1995) ("Myrick").

Public Citizen is a District of Columbia nonprofit corporation with over 60,000 members across the country. It engages in research and advocacy on a range of health and safety issues, including automotive safety. Public Citizen believes that the auto manufacturers are asking this Court to misapply the preemption doctrine and preempt common law claims in violation of Congressional intent. It seeks to participate in this case to protect the interests of consumers and ensure that Congress's will is followed.

The Center for Auto Safety is a nonprofit District of Columbia corporation with 11,000 consumer members throughout the United States, most of whom are automobile owners dedicated to improving automobile safety. It has been participating in auto safety research, regulatory efforts, and litigation since its inception in 1970. The Center for Auto Safety believes that the interpretation of federal law urged by the auto manufacturers in this case poses a severe threat to the health and safety of all those who use automobiles.

Consumers for Auto Reliability and Safety ("CARS") is a national nonprofit consumer organization founded in San Diego in 1979 and incorporated in 1982. Dedicated to promoting auto safety, reducing traffic deaths and injuries, and improving automotive business practices, CARS is supported by over 300 dues-paying members throughout the nation. The organization's members include many people who were injured or whose relatives were killed or injured in auto crashes.

Introduction and Summary of Argument

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Over thirty years ago, the publication of Ralph Nader's Unsafe at Any Speed (1965) helped spur two major developments in the law. First, it prompted personal injury lawyers and the courts to give increased attention and recognition to a relatively recent development -- automobile design defect litigation on behalf of injured drivers and passengers. Second, it prompted Congress to give increased attention to the need for federal auto safety legislation and, ultimately, to pass the National Traffic and Motor Vehicle Safety Act of 1966, 15 U.S.C. Sec.Sec. 1381 et seq.

During the next twenty years, the auto manufacturers consistently argued that, when they had complied with an applicable Federal motor vehicle safety standard, they could not be held liable for failing to do more. Equally consistently, the courts rejected this argument. Eight federal appeals courts and five state courts of last resort addressed the issue of whether compliance with Federal motor vehicle safety standards exempts auto manufacturers from liability in design defect cases. Each reached the same conclusion: Congress' words mean what they say -- "Compliance with any Federal motor vehicle safety standard . . . does not exempt any person from any liability under common law." 15 U.S.C. Sec. 1397(k).

Now the auto manufacturers are being sued at common law for the deaths and injuries that they knew would result from their longstanding refusal to install passive restraints. See, e.g., Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co., 103 S. Ct. 2856, 2862, 2870-71 (1982) ("Motor Vehicle Manufacturers Association") ("the automobile industry waged the regulatory equivalent of war against the airbag" even though "passive restraints could prevent approximately 12,000 deaths and 100,000 serious injuries annually"). And, not surprisingly, they are advancing the same argument. Shockingly, however, at least until the U.S. Supreme Court's decision in Cipollone v. Liggett Group, Inc., 112 S. Ct. 2608 (1992), some courts were accepting it. Thus, prior to the Supreme Court's decision in Cipollone, all four federal circuits to address the manufacturers' preemption argument in "no-airbag" cases held that 15 U.S.C.Sec. 1397(k) precluded a finding of express preemption, but that the manufacturers were impliedly preempted from common law liability solely because they complied with Standard 208. See Taylor v. General Motors Corp., 875 F.2d 816 (11th Cir. 1989), cert. den., 110 S. Ct. 1781 (1990), rev'd in part, Myrick v. Fruehauf Corp., 13 F.3d 1516 (11th Cir. 1994), aff'd sub nom. Freightliner Corp. v. Myrick, 115 S. Ct. 1483 (1995); Kitts v. General Motors Corp., 875 F.2d 787 (10th Cir. 1989), cert. den., 110 S. Ct. 1781 (1990); Pokorny v. Ford Motor Company, 902 F.2d 1116 (3rd Cir. 1990); Wood v. General Motors Corp., 865 F.2d 395 (1st Cir. 1988), cert. den. 110 S. Ct. 1780 (1990).

The courts of this Commonwealth, however, steadfastly insisted that Congress' words meant what they said. In Gingold v. Audi-HSU-Auto Union, A.G., 567 A.2d at 320-24, the Superior Court of Pennsylvania rejected the manufacturers' contention that plaintiff's common law claims were expressly preempted because the manufacturers had complied with Federal Motor Vehicle Safety Standard 208 and ruled, to the contrary, that plaintiff's claims were expressly preserved by section 1397(k). Moreover, it held that, because Congress had expressly stated its intent to preserve common law claims so clearly, the courts were prohibited from considering -- much less agreeing with -- the manufacturers' contention that Congress impliedly preempted those claims. Gingold, 567 A.2d at 326-30.

In Cipollone, the U.S. Supreme Court effectively endorsed the Superior Court's reasoning in Gingold and overruled the aberrant federal implied preemption decisions. Reaffirming that preemption analysis "starts with the assumption that the historic police powers of the States are not to be superseded . . . unless that is the clear and manifest purpose of Congress," 112 S. Ct. at 2617 (emphasis added, brackets deleted), the seven-member majority clarified the rules for courts considering preemption arguments in two respects. First, it held that "[w]hen Congress has considered the issue of preemption and has included in the enacted legislation a provision explicitly addressing that issue, and when the provision provides a reliable indicium of Congressional intent . . . , there is no need to infer congressional intent to preempt state laws from the substantive provisions of the legislation." Id. at 2618 (emphasis added). Second, it ruled that, in determining whether Congress' words expressly preempt state law, the courts must construe those words narrowly in light of the strong presumption against preemption. Id. at 2617-18. As Justice Scalia described the ruling in his dissenting opinion, at 2632, "express preemption provisions must be given the narrowest possible construction."

Applying these principles two years ago in Myrick v. Freuhauf Corp., 13 F.3d 1516 (11th Cir. 1994), aff'd sub nom. Freightliner Corp. v. Myrick, 115 S. Ct. 1483 (1995), the U.S. Court of Appeals for the Eleventh Circuit confirmed that Cipollone effectively overruled the implied preemption decisions upon which GM primarily relies. The Eleventh Circuit held that its finding of implied preemption of "no-airbag" claims in Taylor v. General Motors Corp., 875 F.2d at 827, was no longer good law. Myrick, 13 F.3d at 1521-22. It found that Cipollone compels the conclusion that the Safety Act does not expressly or impliedly preempt any common law claims. Myrick, 13 F.3d at 1528.

Last year, the U.S. Supreme Court unanimously affirmed the Eleventh Circuit's ruling in Myrick. In Freightliner Corp. v. Myrick, 115 S. Ct. 1483 (1995) ("Myrick"), the Court held that the Safety Act does not preempt common law claims based on truck manufacturers' failure to install anti-lock braking systems ("ABS"). The Court found it unnecessary to decide whether the Safety Act's express preemption provision applies to common law claims (and whether the Act's express anti-preemption clause preserves such claims) because, it concluded, the preemption provision has no effect when no Federal safety standard is in place. Id. at 1487. In so doing, the Court again made clear that express preemption provisions are to be narrowly construed. Id. It also explicitly reaffirmed Cipollone's holding that the presence of an express preemption provision in a statute, without more, creates "an inference" that there is no implied preemption. Id. at 1488. (There is, of course, more in the Safety Act; there is an express anti-preemption provision preserving all common law liability.) Finally, in Myrick, the Supreme Court noted that the truck manufacturers' argument was "ultimately futile" because there was no conflict between plaintiffs' common law claims and federal law. It noted: "Standard 121 imposes no requirements either requiring or prohibiting ABS . . . , Standard 121 currently has nothing to say concerning ABS devices one way or the other, and NHTSA has not ordered truck manufacturers to refrain from using ABS devices." Id.

In the wake of Cipollone and Myrick, appellate courts throughout the nation are once again rejecting the auto manufacturers' attempt to nullify the meaning of Congress' plain words. Thus, in Ford Motor Co. v. Tebbetts, 165 A.2d 345, 140 N.H. 203 (N.H. 1995), cert. denied, 116 S. Ct. 773, reh'g. denied, 116 S. Ct. 1036 (1996), the New Hampshire Supreme Court unanimously held that the Safety Act expressly preserves all common law claims, that Congress' plain words preclude any finding of implied preemption, and that the auto manufacturers can be sued under common law for defective designs that lacked airbags. In Wilson v. Pleasant and General Motors Corp., 660 N.E.2d 327 (Ind. 1995), the Supreme Court of Indiana agreed in all respects -- and held that, even if implied preemption could be reached, there is no conflict between a "no-airbag" claim and Standard 208. In Doyle v. Volkswagenwerk Aktiengelellschaft, 81 F.3d 139, 141 (11th Cir. 1996), the Eleventh Circuit reaffirmed that its "no preemption" holding in Myrick is still good law. In Muntz v. Commonwealth of Pennsylvania, 674 A.2d 238 (Pa. Commw. Ct. 1996), and Heiple v. C.R. Motors, Inc., 666 A.2d 1066 (1995), both the Commonwealth Court and a second Superior Court panel found that Congress' words mean what they say. And several other appellate courts held that auto manufacturers are not exempt from common law liability for failing to install airbags or manual lap belts.

Despite Cipollone and Myrick, however, the nation's appeals courts have yet to regain the unanimity they shared in the Safety Act's first twenty years. For example, the Tenth Circuit has again held that "no-airbag" claims are impliedly, but not expressly, preempted. Montag v. American Honda Motor Company, Inc., 75 F.3d 1414 (10th Cir.), cert. denied, 117 S. Ct. 61 (1996). In Ohio, separate appeals courts have reached contradictory conclusions. And, of course, the Superior Court, in a deeply-split en banc decision, found implied preemption in this case. Cellucci v. General Motors Corp., 676 A.2d 253 (Pa. Super.) (en banc), review granted, No. 0379 (Pa. Oct. 22, 1996).

Six months ago, however, the U.S. Supreme Court issued another decision addressing preemption of common law claims, Medtronic, Inc. v. Lohr, 116 S. Ct. 2240 (1996) ("Medtronic"). Rejecting the near-unanimous view of the federal and state appellate courts, the Supreme Court held that the Medical Device Amendments of 1976, 90 Stat. 539, did not preempt any of the plaintiffs' common law claims. In so doing, the Court again made clear that, where Congress has addressed the issue of preemption, the courts should focus on express preemption only. It said:

As in Cipollone v. Liggett Group, Inc., we are presented with the task of interpreting a statutory provision that expressly pre-empts state law. While the pre-emptive language of Sec.360k(a) means that we need not go beyond that language to determine whether Congress intended the MDA to pre-empt at least some state law, we must nontheless identify the domain expressly pre-empted by that language.

Medtronic, 116 S. Ct. at 2250 (citations and quotations deleted).

Even more important, in Medtronic, the Supreme Court stressed the need to respect both the historic role of state common law in protecting consumers and the intent of Congress in enacting the legislation. The Court said:

Although our analysis of the scope of the pre-emption statute must begin with its text, our interpretation of that language does not occur in a contextual vacuum. Rather, that interpretation is informed by two presumptions about the nature of pre-emption.

First, because the States are independent sovereigns in our federal system, we have long presumed that Congress does not cavalierly pre-empt state-law causes of action. In all pre-emption cases, and particularly in those in which Congress has legislated in a field which the States have traditionally occupied, we 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. . . That approach is consistent with both federalism concerns and the historic primacy of state regulation of matters of health and safety.

Second, our analysis of the scope of the statute's preemption is guided by our oft-repeated comment, . . . that the purpose of Congress is the ultimate touchstone in every pre-emption case. As a result, any understanding of the scope of a pre-emption statute must rest primarily on a fair understanding of congressional purpose. Congress' intent, of course, primarily is discerned from the language of the pre-emption statute and the statutory framework surrounding it. Also relevant, however, is the structure and purpose of the statute as a whole, as revealed not only in the text, but through the reviewing court's reasoned understanding of the way in which Congress intended the statute and its surrounding regulatory scheme to affect business, consumers, and the law.

Medtronic, 116 S. Ct. at 2250-51 (emphasis in original, citations and quotations deleted).

The U.S. Supreme Court's decision in Medtronic eviscerates the decision below and dictates a finding of no preemption in this case, as the California Court of Appeal recognized just two months ago. In Ketchum v. Hyundai Motor Company, ___ P.2d ___, No. B077874 (Cal. Ct. App. Oct. 11, 1996), the unanimous court quoted extensively from the language set forth above, said "we find guidance in the [Supreme Court's] discussion of the basic principles of preemption," and concluded that the Safety Act does not preempt any common law claims. Ketchum, slip op. at 13-18. This Court should reach the same conclusion in this case for three basic reasons.

First, as the Supreme Court reaffirmed in Medtronic, in determining whether plaintiffs' common law claims are preempted, a court's "sole task is to ascertain the intent of Congress." California Federal at 280. Here, that task is exceedingly easy to perform: Congress explicitly and unequivocally preserved all common law claims by enacting 15 U.S.C. Sec. 1397(k). The Safety Act's legislative history powerfully confirms that the Safety Act means what it says -- common law claims are not preempted. Moreover, not once in Standard 208's long and convoluted history did the federal agency promulgating it ever suggest that it was intended to preempt common law claims. To the contrary, in 1984, Transportation Secretary Dole specifically noted comments that auto manufacturers could be sued by crash victims injured because their cars lacked airbags. 49 Fed. Reg. 28972.

Second, as Cipollone, Myrick, and Medtronic all teach, the fact that Congress expressly addressed the Safety Act's preemptive effect in the statute's language -- and explicitly prohibited preemption of common law claims -- precludes courts from considering (much less finding) implied preemption of such claims. If the Safety Act only contained an express preemption provision, the failure of that provision to preempt common law claims would create, by itself, an inference of no implied preemption. The Safety Act, however, also contains an express anti-preemption provision which expressly preserves all common law liability. As Cipollone makes clear, that anti-preemption provision creates an unequivocal bar to implied preemption here.

Third, Myrick demonstrates that, even if this Court could reach the issue of implied preemption, it could not find implied preemption in this case because plaintiff's claims do not conflict with the Safety Act or Standard 208. The Safety Act, of course, expressly preserves all common law claims. The version of Standard 208 in effect when GM manufactured the 1986 Chevrolet Cavalier at issue in this case did not dictate any particular design, prevent GM from doing more than the minimum required, or preclude GM from installing an airbag in any car. It left GM free to install and airbag -- in addition to a three-point manual belt -- in Daniel Cellucci's car. That being so, it in no way conflicts with the federal regulatory regime for plaintiff to show that there was an alternative design available that would have prevented Daniel Cellucci's injuries -- a design that included an airbag.

Argument
Congress Did Not Intend to Preempt Plaintiff's Claims.

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In determining whether a state cause of action is preempted by federal law, "the purpose of Congress is the ultimate touchstone." Medtronic, 116 S. Ct. at 2250. Because of the plain words used by Congress -- and the Supreme Court's recent decisions in Cipollone, Myrick, and Medtronic -- that purpose is crystal-clear here. There are three reasons why plaintiff's claims in this case are not preempted by the Safety Act. The first -- and the "touchstone" for all of the others -- is that Congress did not intend to preempt them. To the contrary, Congress clearly and unequivocally preserved them.

Plaintiff's Claims Are Not Expressly Preempted Because Congress Expressly Preserved Them.

Congress enacted the Safety Act on September 9, 1966. Its sole stated purpose in doing so was "to reduce traffic accidents and deaths and injuries to persons resulting from traffic accidents." 15 U.S.C. Sec. 1381. To achieve this purpose, the Act authorized the establishment of federal "motor vehicle safety standards," which were to be "minimum standards for motor vehicle performance or motor vehicle equipment performance. . ." 15 U.S.C. Sec. 1391(2) (emphasis added). Newly manufactured vehicles that did not comply with these minimum performance standards could not be sold. 15 U.S.C. Sec. 1397(a).

When it enacted the Safety Act, Congress was fully aware that it was legislating in an area previously governed only by state law. For that reason, Congress explicitly addressed what it did and did not intend to preempt in two separate sections of the Safety Act -- the preemption provision and the anti-preemption (savings) provision. The former does not apply to common law claims. The latter expressly preserves them.

The Safety Act's Express Preemption Provision.

The Safety Act's preemption provision states in pertinent part:

Whenever a Federal motor vehicle safety standard established under this subchapter is in effect, no State or political subdivision of a State shall have any authority either to establish, or to continue in effect, with respect to any motor vehicle or item of motor vehicle equipment any safety standard applicable to the same aspect of performance of such vehicle or item of equipment which is not identical to the Federal standard.

15 U.S.C. Sec. 1392(d). For several reasons, this language -- narrowly construed in light of the presumption against preemption, see Cipollone, 112 S. Ct. at 2617-18 -- does not preempt plaintiff's common law claims.

First, the preemption provision merely prohibits a State from establishing or continuing in effect a "safety standard" that conflicts with a "Federal motor vehicle safety standard" established under the Act. "Safety standard" is the term used throughout the Act to refer to the administrative standards that the Secretary is authorized to adopt pursuant to the Act. See, e.g., 15 U.S.C. Sec. 1392(e) ("[t]he Secretary may by order amend or revoke any [f]ederal motor vehicle safety standard . . . "); id. at Sec. 1392(h) ("[t]he Secretary shall issue initial [f]ederal motor vehicle safety standards. . . "); id. at Sec. 1392(i)(1)(A) ("the Secretary shall publish proposed [f]ederal motor vehicle safety standards . . . "); id. at Sec. 1392(i)(1)(B) ("the Secretary shall promulgate [f]ederal motor vehicle safety standards . . . "). The use of the same term to refer to the state norms that may be displaced by a Federal "safety standard" is, under normal rules of statutory construction, indicative that the term is meant to have the same meaning. See Estate of Cowart v. Nicklos Drilling Co., 112 S. Ct. 2589, 2596 (1992) (it is a "basic canon of statutory construction that identical terms within an Act bear the same meaning") (citing cases); Morrison-Knudsen Const. v. Director, Office of Workers Comp. Programs, 461 U.S. 624, 633 (1983) ("a word is presumed to have the same meaning in all subsections of the same statute"). See also Medtronic, 116 S. Ct. at 2252 (citing other uses of the term "requirements" throughout statute to demonstrate its focus is "enactments of positive law by legislative or administrative bodies, not the application of general rules of common law by judges and juries"). Thus, the only sensible reading of the Safety Act's preemption provision is that a "safety standard" promulgated under the Act will only preempt a state legislative or administrative "safety standard" that is not identical to the federal standard.

Second, if Congress intended the preemption provision to apply to common law claims, it would likely have chosen words that more clearly did so -- particularly since it referred specifically to common law liability in the Safety Act's anti-preemption provision. The term "safety standards" is hardly a clear reference to common law claims. See Medtronic, 116 S. Ct. at 2253 ("[I]f Congress intended to preclude all common-law causes of action, it chose a singularly odd word ["requirement"] with which to do it. The statute would have achieved an identical result, for instance, if it had precluded any 'remedy' under state law relating to medical devices.").

Third, the "safety standards" referred to in the Safety Act's preemption provision are those that concern an "aspect of performance." This was not an idle choice of words by Congress. As the Senate Report accompanying the Safety Act explained:

Unlike the General Services Administration's procurement standards, which are primarily design specifications, both the interim standards and the new and revised standards are expected to be performance standards, specifying the required minimum safest performance of vehicles but not the manner in which the manufacturer is to achieve the specified performance. . . . The Secretary would thus be concerned with measurable performance of a braking system, but not its design details.

S. Rep. No. 1301, 89th Cong., 2d Sess. 6 (1966) (emphasis added). Common law claims, in contrast, do not set specific minimum performance standards; they focus -- as motor vehicle safety standards do not -- on the manner in which the manufacturer chose to achieve the specific performance. Indeed, this case focuses on whether GM's design was negligent and/or defective.

Fourth, the preemption provision only applies to a safety standard "established" or "continued in effect" by a "State or a political subdivision of a State." It cannot seriously be argued that a jury (or judge) in a tort case somehow "establishes" or "continues in effect" a "safety standard" or constitutes a "State or political subdivision of a State" -- particularly as those terms (narrowly construed in light of the presumption against preemption) are defined in the Safety Act.

Fifth, the Safety Act defines a "motor vehicle safety standard" as a "minimum standard for motor vehicle performance, which is practicable, which meets the need for motor vehicle safety and which provides objective criteria." 15 U.S.C. Sec. 1391(2). This definition plainly encompasses state statutory and administrative performance requirements and, just as plainly, does not encompass either general state common law standards or jury verdicts applying those standards in specific cases, neither of which "provide objective criteria" of the type set forth in administrative regulations.

Finally and most tellingly, if the preemption provision did apply to common law claims, it would, by its terms, preempt virtually all common law claims, including those routinely allowed by the courts over the past thirty years. To put it simply, GM's express preemption argument proves too much. Federal motor vehicle safety standards are currently in effect as to almost all aspects of performance of motor vehicles and their equipment. Since those standards preempt any state "safety standard applicable to the same aspect of performance . . . which is not identical to the Federal standard," 15 U.S.C. Sec. 1392(d), they would preempt almost all common law claims -- and leave design defect victims with no remedy -- if common law claims really did establish state "safety standards." Obviously, they do not.

In Medtronic, the medical device manufacturers advanced an express preemption argument that was similarly flawed. The reasoning in Medtronic, 116 S. Ct. at 2251, is equally applicable here:

Under Medtronic's view of the statute, Congress effectively precluded state courts from affording state consumers any protection from injuries resulting from a defective medical device. Moreover, because there is no explicit private cause of action against manufacturers contained in the MDA, and no suggestion that the Act created an implied private right of action, Congress would have barred most, if not all, relief for persons injured by defective medical devices. Medtronic's construction of Sec.360k would therefore have the perverse effect of granting complete immunity from design defect liability to an entire industry that, in the judgment of Congress, needed more stringent regulation in order "to provide for the safety and effectiveness of medical devices intended for human use," 90 Stat. 539 (preamble to Act). It is, to say the least, "difficult to believe that Congress would, without comment, remove all means of judicial recourse for those injured by illegal conduct," Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 251 (1984), and it would take language much plainer than the text of Sec.360k to convince us that Congress intended that result.

In this case, as in Medtronic, there is no private cause of action against manufacturers contained or implied in the Safety Act. Thus, GM's interpretation of the Act's preemption provision would grant near-complete immunity from design defect liability to an entire industry that, in the judgment of Congress, needed more stringent regulation "to reduce traffic accidents and deaths and injuries to persons resulting from traffic accidents." 15 U.S.C. Sec. 1381. GM's interpretation is untenable. The Safety Act's express preemption provision simply does not apply to common law claims.

The Safety Act's Express Anti-Preemption Clause.

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If any doubt remained as to the inapplicability of the Safety Act's express preemption provision to common law claims, it would be dispelled by the Safety Act's express anti-preemption provision -- the savings clause -- which plainly and unambiguously preserves all common law claims. It states in simple and straightforward terms: "Compliance with any Federal motor vehicle safety standard issued under this subchapter does not exempt any person from any common law liability." 15 U.S.C. Sec. 1397(k).

On its face, the savings provision is sweeping and unambiguous. "Compliance with any Federal . . . safety standard" is a phrase that does not admit of qualification. It cannot be read to mean only compliance with certain federal safety standards, or to except from its scope safety standards that deal with the particular question of design or performance at issue in a given common law action. Similarly, the phrase "does not exempt any person from any common law liability" does not on its face admit of qualification. "[A]ny common law liability" is all-inclusive. That phrase cannot fairly be read to mean that the Safety Act provides any basis for exempting any defendant from any common law liability. See United States v. James, 478 U.S. 597, 604 (1986) (the federal statute "outlines immunity in sweeping terms: `No liability of any kind shall attach to or rest upon the United States for any damage from or by floods or flood waters at any place.' It is difficult to imagine broader language.") (emphasis in original).

Before the Superior Court, GM and its amicus nonetheless argued that plaintiff's claims are expressly preempted because the savings clause is really only intended to negate the affirmative state law defense of compliance with government standards. This reading of the savings clause makes no sense, particularly in light of the interpretation of the preemption provision that GM advances. According to GM, any common law claim that relates to the same aspect of performance as a federal motor vehicle safety standard is preempted by direct operation of the preemption provision. If such claims were preempted by the preemption clause, however, the savings clause would not logically relate to them. That is, there would be no reason for Congress to have negated the affirmative state law defense of compliance with government standards with respect to claims that fall within the scope of the preemption provision, because those claims would already be extinguished by virtue of preemption.

Thus, under the reading advanced by GM, the savings clause could only logically relate to claims that survive the preemption provision because they concern an aspect of motor vehicle performance that is not subject to a federal safety standard. But here GM's argument breaks down completely, since there could be no affirmative defense of compliance with a federal standard that does not exist. In other words, under GM's reading of the preemption provision, the savings clause could only apply in cases where it would necessarily have no legal effect. GM would essentially render the section's plain language and purpose nugatory.

The majority below found that the Safety Act's savings clause precluded a finding of express preemption. Cellucci, 676 A.2d at 259. In order to find implied preemption, however, the majority still had to find that the savings clause does not mean what it says. The majority held that, despite its unequivocal terms, the savings clause does not preserve common law claims that "conflict" with the federal regulatory scheme and simply "serves the purpose of demonstrating that Congress did not intend to occupy the entire field of automobile safety." Id. at 260-61.

There are two problems with this assertion. First, it conflicts with the plain and far-reaching language of the savings clause. Second, it cannot be squared with the language of the preemption provision. The preemption provision by its terms applies only when there is a federal safety standard in place and a state safety standard regulates "the same aspect of performance" as the federal standard. Thus, the scope of the preemption provision is clearly limited to situations where state and federal regulations address the same matter. The preemption provision cannot be read to give rise to any broader "field" preemption of matters not regulated by the federal agency. Accordingly, there would be no reason for the savings clause to address, and affirmatively negate, the prospect of such broader field preemption.

In short, Congress wrote the savings clause with one result in mind: to make crystal clear that no common law claims are preempted under the Safety Act. The Safety Act's legislative history confirms this fact.

The Safety Act's Legislative History.

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Normally, the plain and unequivocal language of the preemption provision and the savings clause would preclude further analysis. See, e.g., TVA v. Hill, 437 U.S. 153, 184 n.29 (1984). But, if one looks to the Safety Act's legislative history, it only confirms that Congress intended to preserve all common law claims.

The Senate Bill.

The bill reported out of the Senate Commerce Committee and passed by the full Senate contained a preemption provision similar to the bill ultimately enacted into law. See 112 Cong. Rec. 14,257 (1966). But the Senate bill did not include a savings provision. Even so, the Senate Committee Report stated that:

[T]he Federal minimum safety standards need not be interpreted as restricting State common law standards of care. Compliance with such standards would thus not necessarily shield any person from product liability at common law.

S. Rep. No. 1301, 89th Cong., 2d Sess. 12 (1966). And Senator Magnuson, the sponsor of the Senate bill, stated on the floor of the Senate that:

Compliance with Federal standards would not necessarily shield any person from broad liability at the common law. The common law on product liability still remains as it was.

112 Cong. Rec. 14,230 (1966)(emphasis added).

The House Bill.

The original House bill contained a preemption provision similar to the preemption provision in the Senate bill, and, like the Senate bill, did not contain a savings provision. See H.R. 13228, 89th Cong., 2d Sess. (introduced on March 2, 1966). During hearings on that bill, however, Tom Triplett, an attorney from South Carolina, raised the following pointed concern regarding the possible effect of the House bill on the liability of manufacturers under state law:

We need a traffic safety agency and we need to research our problem from end to end, but we don't need to relieve the manufacturer of his natural responsibility for the performance of his product.

You may think that the manufacturer is afraid of Government regulation but the cry you are hearing may be "Brer Fox, please don't throw me in the briar patch." If the Government assumes the responsibility of safety design in our vehicles, the manufacturers will join together for another 30-year snooze under the veil of Government sanction and in thousands of courtrooms across the Nation wronged individuals will encounter the stone wall of "Our product meets Government standards," and an already compounded problem will be recompounded.

Hearings on H.R. 13228 Before the House Committee on Interstate and Foreign Commerce, 89th Cong., 2d Sess. 1249 (1966) ("House Hearings").

Representative Farnsley, a member of the Committee, referred to Mr. Triplett's testimony a few moments later:

This gentlemen has raised, perhaps not brilliantly but I think well, [a] question. . . . He said Brer Rabbit told Brer Fox, "Don't throw me in the briar patch.". . . . Now the question is up: Is the manufacturer responsible for inherent dangerous design? If there are Federal standards, this man has said this brings an absolute wall against those suits, and he feels that the manufacturers want these standards. I think maybe he has a point. . . [T]he courts, under the old common law and our statutes, hold them responsible. Now I think we should take a long time before we change that responsibility. I have talked longer than I intended to, but I feel this is very important.

Id. at 1256-57.

Representative Farnsley then engaged in the following colloquy with Committee Chairman Staggers, who was the sponsor of the House bill:

The Chairman. I would say to you again, and I have this much faith and I know you do too, in the men who sit on this committee, that we will not put an umbrella over anyone.

Mr. Farnsley. Good. You believe, then, you can set Federal standards and this isn't a defense in a lawsuit, to say, "We have met Federal standards"? That is what this witness said.

The Chairman. That is not the intent of this legislation.

Mr. Farnsley. I know it is not the intent, but is it possible?

The Chairman. It could be if we did not accept our responsibility here as a committee. But we do not intend to put that umbrella up, I assure you.

Id. at 1258 (emphasis added).

Representative Mackay intervened to drive the point home:

With regard to title I, which I predict is going to be the real hard nut to crack in the minds of the committee because of its complexity, the agency bill provides for certification of vehicles that actually met minimum safety standards.

This does not preclude building a car with higher standards of safety, nor does it relieve makers of any legal liability whatsoever in terms of their obligation to the consumer.

Id. at 1260 (emphasis added).

Consistent with the foregoing, the House Committee amended the original House bill by inserting a savings provision identical in all respects to the savings provision ultimately signed into law: "Compliance with any Federal motor vehicle safety standard issued under this title does not exempt any person from any common law liability." See 112 Cong. Rec. at 19,657 (1966) (emphasis added). This savings provision was explained in the House Committee Report as follows:

It is intended and this subsection specifically establishes, that compliance with safety standards is not to be a defense or otherwise to affect the rights of parties under common law particularly those relating to warranty, contract, and tort liability.

H.R. Rep. No. 1776, 89th Cong., 2d Sess. 24 (1966) (emphasis added).

During the floor debates on the reported House bill, Representative O'Neill proposed an amendment that would have strengthened the remedial provisions of the bill by adding criminal penalties for willful violations of the Act. In opposing this amendment, Representative Dingell, a member of the House Committee that had reported the bill, stated:

We are told . . . that this legislation is not strong enough. A look at the bill, at what the committee has brought to the floor, disproves this. . . . [W]e have preserved every single common-law remedy that exists against a manufacturer for the benefit of a motor vehicle purchaser. This means that all of the warranties and all of the other devices of common law which are afforded to the purchaser, remain in the buyer, and they can be exercised against the manufacturer.

112 Cong. Rec. 19,663 (1966) (emphasis added).

The amendment was defeated. Id. at 19,664. The reported bill then passed the full House with certain minor amendments not relevant here. Id. at 19,664-19,669.

The Senate-House Conference.

A Senate-House Conference Committee was convened to reconcile the differences between the Senate and House bills. The Conference Committee adopted the savings provision of the House bill in haec verba, and also adopted the House version of the preemption provision with certain minor changes not relevant here.

The Conference Committee Report made no mention of the Senate's agreement to the savings provision included in the House bill. But the Senate conferees' understanding of the savings provision was clearly stated on the floor of the Senate by Senator Magnuson, the sponsor of the Senate bill, as well as by Senator Cotton, a conferee. Senator Magnuson stated:

The Senate conferees accepted the House provision that compliance with Federal standards does not exempt any person from common law liability. This provision makes explicit, in the bill, a principle developed in the Senate report. This provision does not prevent any person from introducing in a lawsuit evidence of compliance or noncompliance with Federal standards. No court rules of evidence are intended to be altered by this provision.

112 Cong. Rec. 21,487 (1966).

And Senator Cotton explained:

The Senate conferees also yielded on a provision, inserted by the House, declaring that compliance with any Federal standard does not exempt any person from common law liability. Nevertheless, it seems clear and was, I believe, the consensus of the conferees on both sides, that proof of compliance with Federal standards may be offered in any proceeding for such relevance and weight as courts and juries may give it.

Id. at 21,490.

The legislative history, thus, conclusively demonstrates that the Safety Act means what it says: Congress expressly preserved all common law claims. Before proceeding further, however, we urge the Court to focus on Tom Triplett's testimony before Congress because of its prophetic nature: Mr. Triplett predicted precisely the course of conduct that the auto manufacturers and the federal government would ultimately take in regard to the implementation of passive restraints.

Standard 208.

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Given Congress' clear and unequivocal presentation of all common law claims, the history of Standard 208 is not particularly relevant to the preemption issue presented in this case. Whatever the federal government may have said in promulgating Standard 208, Congress did not give it the power to preempt common law claims. See 15 U.S.C. Sec. 1397(k).

Despite that fact, we briefly review Standard 208's long and convoluted history here to make a critical point: while Standard 208 was repeatedly proposed, amended, promulgated, and rescinded, not once in all of the documents taking or explaining these actions did the federal government suggest that Standard 208 was intended to preempt common law claims. (If it had done so, the proposed standard would surely have been challenged on the ground that Congress gave no such power to the Department of Transportation). To the contrary, the history shows that, in promulgating the 1984 version of Standard 208, which applies to the Chevrolet Cavalier in this case, Transportation Secretary Dole specifically noted comments that the auto manufacturers could be sued by crash victims injured because their cars lacked airbags.

In 1967, the federal agency responsible for implementing the Safety Act -- the National Highway Transportation Safety Administration ("NHTSA") -- issued Standard 208, requiring all manufacturers to install passive restraints by the early 1970's. 32 Fed. Reg. 2408 (Feb. 3, 1967). After Henry Ford and Lee Iacocca personally met with President Nixon and John Erlichman in the Oval Office and complained about the agency's action, the President ordered the passive restraint requirement rescinded. See National Archives transcript, "Part of a Conversation Among President Nixon, Lee Anthony Iacocca, Henry Ford II, and John D. Erlichman in the Oval Office on April 27, 1971 between 11:08 and 11:43 a.m."; 37 Fed. Reg. 3911 (Feb. 24, 1972).

From 1974 through 1976, General Motors nevertheless manufactured 10,000 cars with airbags, but it did virtually nothing to market them; GM salesmen actually discouraged consumers who expressed interest in purchasing cars with airbags. See "Saga of the Air Bag, or the Slow Deflation of a Car-Safety Idea," The Wall Street Journal, November 11, 1976. Transportation Secretary William Coleman then concluded that airbags were safe and effective, but again decided not to mandate passive restraints, this time out of concern for what he called unwarranted public concerns about their utility. U.S. Department of Transportation, "The Secretary's Decision Concerning Motor Vehicle Occupant Crash Protection" (Dec. 6, 1976).

Secretary Coleman's successor, Brock Adams, reversed the decision and required passive restraints in all large cars manufactured after September 1, 1981, and all cars manufactured after September 3, 1983. 42 Fed. Reg. 34289 (July 5, 1977). Seven months before the first deadline, however, new Transportation Secretary Drew Lewis delayed, and then rescinded, that order. 46 Fed. Reg. 12033 (Feb. 12, 1981); 46 Fed. Reg. 53419 (Oct. 29, 1981). Noting that most manufacturers would install detachable automatic seatbelts, rather than the far-safer airbags, he ruled that the passive restraint requirement would defeat auto safety, because the automatic seatbelts would simply be detached. Id.

In June 1983, the Supreme Court held the rescission of Standard 208 by Secretary Lewis arbitrary and capricious. The Court was especially critical that, after deciding that detachable automatic seat belts would not work, NHTSA had not even considered requiring airbags only. It lambasted the government's acquiescence to the auto makers' decision to use a less effective automatic restraint:

For nearly a decade, the automobile industry waged the regulatory equivalent of war against the airbag and lost - the inflatable restraint was proven sufficiently effective ... But the agency not only did not require compliance through airbags, it did not even consider the possibility in its 1981 rulemaking. Not one sentence of its rulemaking discusses the airbags- only option ... as the Court of Appeals stated, "NHTSA's ... analysis of airbags was nonexistent.

Motor Vehicle Manufacturers Association, 103 S. Ct. at 2869-70.

In July 1984, Secretary of Transportation Elizabeth Dole reinstated the passive restraint requirement, with a phase-in period beginning September 1, 1986, and full implementation required September 1, 1989. 49 Fed. Reg. 28962 (July 17, 1984). Because the Supreme Court had found the prior Secretary's decision arbitrary and capricious for failing to consider an "airbags only" requirement, Secretary Dole went to some length explaining why she was not requiring "airbags only" -- instead of automatic seat belt systems -- in all cars. From the data analyzed, Secretary Dole concluded that the safest system was precisely the one that the plaintiff seek to prove was an available, safer design in this case: "First, the most effective system is an airbag plus a lap and shoulder belt." 49 Fed. Reg. at 28986. (Emphasis added). Nevertheless, concerned that industry opposition to an airbag mandate would lead the public to be unduly resistant to implementation of this "most effective system," Secretary Dole decided not to require only airbags in all cars. Instead, she ordered some form of passive restraints to be installed and announced that she intended to encourage the "development and availability [of airbags] through appropriate incentives." Id. at 28963. In so doing, she explicitly noted comments that the auto manufacturers could be sued by crash victims who were injured because their cars lacked airbags:

Another potential source of manufacturer liability was raised by Stephen Teret, representing the National Association for Public Health Policy:

"If a reasonable means of protection is being denied to the motoring public, the denial should lead to liability, even if the liability can be imposed on each and every car manufacturer. People whose crash injury would have been averted had the car been equipped with an air bag can sue the car manufacturer to recover the dollar value of the injury."

Id. at 28972. And, when confronted with criticism that the manufacturers would use the cheapest system to comply with the automatic restraint system requirement, she said, "The Department does not agree with this contention. It believes that competition, potential liability for any deficient system, and pride in one's product would prevent this." 49 Fed. Reg. 29000 (1984) (emphasis added).

At the time the 1986 Chevrolet Cavalier in this case was manufactured, Standard 208 required, at a minimum, (1) a manual lap belt and shoulder harness, (2) an automatic seat belt system providing at least a specified level of protection in head-on crashes, or (3) an airbag or other device providing automatic protection in both head-on and angular crashes. 49 C.F.R. Sec. 571.208. It did not prohibit GM, however, from adding airbags to any design it chose or from installing "the most effective system" in all of its cars. Finally, in 1991, Congress passed legislation ordering NHTSA to require airbags in all cars by 1998 -- thirty-one years after Standard 208 was first promulgated. See 49 U.S.C. Sec. 30127(b).

The history of Standard 208 underscores just how prophetic Tom Triplett was. The government and the manufacturers truly did join together for a "30-year snooze" and now the manufacturers are crying, "Our product meets Government standards." House Hearings at 1249. It is precisely the threat of such a scenario that prompted Congress to expressly preserve all common law claims. In this case, the question is whether, as Tom Triplett feared, the auto industry will escape liability like Brer Rabbit in the briar patch or, as Congress plainly intended, the auto manufacturers will be held fully accountable at common law. The latter is what the Safety Act clearly requires.

The Bottom Line.

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The bottom line is that Congress specifically considered the issue presented by this case and unequivocally preserved all common law claims. The legislative history confirms that fact and the history of Standard 208 underscores the wisdom of Congress' approach. Nevertheless, GM and its amicus insist that common law claims must be preempted because, otherwise, common law claims could proceed, despite their "regulatory effect," when state regulations addressing the same matters would be preempted -- a result, they say, that Congress could not logically have intended. Congress, however, has repeatedly preserved common law claims, despite their regulatory effect, while preempting direct state regulation. Indeed, in Medtronic, the Supreme Court held that was precisely Congress' intent in enacting the Medical Device Amendments of 1976. Similarly, the Supreme Court said in Goodyear Atomic Corp. v. Miller, 486 U.S. 174 (1988):

The effects of direct regulation on the operation of federal projects are significantly more intrusive than the incidental regulatory effects of such an additional award provision. Appellant may choose to disregard Ohio safety regulations and simply pay an additional workers' compensation award if an employee's injury is caused by a safety violation. We believe Congress may reasonably determine that incidental regulatory pressure is acceptable, whereas direct regulatory authority is not. Cf. Silkwood v. Kerr McGee Corp., 464 U.S. at 256 (Congress was willing to accept regulatory consequences of application of state tort law to radiation hazards even though direct state regulation of safety aspects of nuclear energy was pre-empted).

Id. at 185-86 (footnote omitted). See also English v. General Elec. Co., 496 U.S. 72, 85 (1990) (holding that the regulatory effect of petitioner's state common law claims was "neither direct nor substantial enough" to place them within the preempted field). If there is any tension between plaintiff's common law claims and Standard 208, that is a tension that Congress intended to create when it enacted section 1397(k). The courts are not free to disturb that decision. Silkwood, 464 U.S. at 256.

Thus, it was hardly novel for Congress to choose to preempt state legislative and administrative safety standards that are different than a federal standard, while leaving common law claims intact. In fact, this has often been Congress's approach in the area of consumer protection.

While some may disagree with it, this approach clearly makes sense. As GM well knows, and Congress certainly understood when it passed the Safety Act, regulatory agencies are notoriously subject to capture by those they are intended to regulate and, even in the best circumstances, move laboriously and cautiously. Given the purpose of the Safety Act, it was surely reasonable for Congress to continue to allow the common law tort system to play its traditional role of creating incentives for safety improvements and of prompting the federal government and auto manufacturers to set higher standards for safety features. As the California Court of Appeal said only last month, both the Safety Act and its legislative history "reflect Congress's desire to specify only the minimum standards for motor vehicle safety, with the expectation that market forces would encourage manufacturers to develop higher safety performance. That intent is not served by preempting common law claims of negligence, since a manufacturer would not have the risk of tort liability to encourage development of safety features." Ketchum, slip op. at 16.

For all of these reasons, even the four federal appeals courts that adopted the manufacturers' implied preemption argument prior to Cipollone agreed that the Safety Act does not expressly preempt any common law claims. See Pokorny v. Ford Motor Co., 902 F.2d at 1120-26; Taylor v. General Motors Corporation, 875 F.2d at 823-25; Kitts v. General Motors Corp., 875 F.2d at 789; Wood v. General Motors Corp., 865 F.2d at 403-07. See also Cellucci, 676 A.2d at 259. Once this Court accepts the findings of all of the prior federal appellate court decisions -- that Congress did not expressly preempt common law claims -- the analysis of the preemption issue ends. For, as Cipollone, Myrick, and Medtronic make plain, Congress' unequivocal words preclude consideration of GM's implied preemption arguments.

The Question of Implied Preemption Cannot Be Reached Because Congress Clearly and Expressly Preserved All Common Law Claims.

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In Cipollone, the United States Supreme Court made clear that, where Congress has spoken directly and clearly on the preemption issue at stake -- as it did in the Safety Act -- a court is prohibited from considering any doctrine of implied preemption. The seven-member majority stated:

When Congress has considered the issue of preemption and has included in the enacted legislation a provision explicitly addressing that issue, and when the provision provides a reliable indicium of congressional intent . . . , there is no need to infer congressional intent to preempt state laws from the substantive provisions of the legislation.

Cipollone, 112 S. Ct. at 2618 (quotations and citations deleted).

The statutes at issue in Cipollone contained express preemption clauses, but, unlike the Safety Act, contained no express anti-preemption clauses. Moreover, the lower courts had routinely found those statutes to impliedly preempt common law claims. See, e.g., Cipollone v. Liggett Group Inc., 789 F.2d 181 (3d Cir. 1986); Palmer v. Liggett Group, Inc., 825 F.2d 620 (1st Cir. 1987). The Supreme Court, however, insisted that the only question properly considered was whether the statutes' preemption provisions expressly preempted plaintiff's claims. This approach, the Court said "is a variant of the familiar principle of expressio unius est exclusio alterius: Congress' enactment of a provision defining the pre-emptive reach of a statute implies that matters beyond that reach are not preempted." Cipollone, 112 S. Ct. at 2618.

In Myrick, the Supreme Court again affirmed this principle, but clarified that an express preemption clause, standing alone, does not automatically preclude implied preemption; it only does so when it provides a "reliable indicium of congressional intent" with respect to preemption. Myrick, 115 S. Ct. at 1488. The Court explained:

The fact that an express definition of the pre-emptive reach of a statute "implies" -- i.e. supports a reasonable inference -- that Congress did not intend to pre-empt other matters does not mean that the express clause entirely forecloses any possibility of implied preemption . . . At best, Cipollone supports an inference that an express pre-emption clause forecloses implied pre-emption; it does not establish a rule.

Myrick, 115 S. Ct. at 1488.

As if these teachings were not clear enough, six months ago, in Medtronic, the Supreme Court made plain that there can be no resort to implied preemption in this case. It said:

As in Cipollone, we are presented with the task of interpreting a statutory provision that expressly pre-empts state law. While the pre-emptive language of Sec.360k(a) means that we need not go beyond that language to determine whether Congress intended the MDA to pre-empt at least some state law, we must nontheless identify the domain expressly pre-empted by that language.

Medtronic, 116 S. Ct. 2250 (citations and quotations omitted). While the members of the Court disagreed vehemently on the meaning of Congress' words, they all agreed that, since Congress had expressly stated its intent with respect to preemption, only express preemption analysis could be pursued.

Given these teachings, and Congress's unequivocal preservation of all common law claims in the Safety Act, the result is clear: GM's implied preemption arguments cannot be considered; the majority below erred in reaching -- much less finding -- implied preemption. Even before Medtronic, courts throughout the nation were holding that, under Cipollone and Myrick, Congress' plain words precluded consideration of implied preemption. Thus, in Ford Motor Company v. Tebbetts, 140 N.H. at 207, the Supreme Court of New Hampshire unanimously said:

Having determined that the preemption clause when read in tandem with the saving clause "provides a reliable indicium of congressional intent with respect to state authority, there is no need to infer congressional intent to pre-empt state laws from the substantive provisions of the legislation." Cipollone, 112 S. Ct. at 2618 (citation and quotation omitted).

Similarly, in Wilson v. Pleasant, 660 N.E.2d at 336, the Indiana Supreme Court stated:

[W]e hold that in the Sec. 1397(k) savings clause of the Safety Act, Congress made an explicit statement that the kind of state common law claim made by plaintiff in this case is not pre-empted by the Safety Act or standards promulgated thereunder. And while fully subscribing -- as we must -- to Myrick's teaching that an express pre-emption clause does not as a rule foreclose implied pre-emption, for the reasons set forth above, we hold that the Sec. 1397(k) pre-emption clause entirely forecloses any possibility of implied pre-emption in this case.

Prior to the decision below, both the Commonwealth Court and two separate panels of the Superior Court reached precisely the same conclusion. See Muntz v. Commonwealth of Pennsylvania, 674 A.2d at 332 ("Because the intent of Congress is manifest in sections 1392(d) and 1397(k) of the Safety Act, there is no need for us to perform an implied preemption analysis in order to infer that intent."); Heiple, 666 A.2d at 1086 ("[B]ased upon our extensive analysis of express preemption, supra, we find a clear statement by Congress that common law causes of action are not in conflict with the goals and purposes of the Safety Act. Therefore, we are precluded from finding such a conflict by implication, as appellant would have us do."); Gingold, 567 A.2d at 320 ("The express preemption language of section 1397[(k)] should conclude the matter."). As the Superior Court explained in Gingold, 567 A.2d at 330 (citations deleted):

The touchstone to any preemption analysis is congressional intent. While all of the courts which have reviewed the preemption issued regarding passive restraints have started from this position, we feel that those which have found preemption lost their bearings in the labyrinthine ways of argument and in the maze of statutory construction. Within this maze, cases finding preemption have unintentionally vitiated that which they had set out to support -- congressional intent. We think that intent is adequately set forth in section 1397[(k)] of the Act. Nothing else in the Act or its history is of sufficient force or character to justify a disregard of the plain language of this section.

Some courts, including the Tenth Circuit in Montag, 75 F.3d at 1414, and the majority below, nevertheless issued decisions after Cipollone and Myrick adopting the manufacturers' implied preemption arguments. The U.S. Supreme Court's decision in Medtronic makes clear that those decisions were in error. Indeed, relying heavily on Medtronic, the California Court of Appeal has just found that the Safety Act preserves all common law claims, saying, "Congress clearly distinguished between motor vehicle safety standards, which are preempted, and common law standards for liability, which are not. This language unambiguously expresses the intent of Congress to preserve common law liability actions." Ketchum, __ P.2d at __, slip op. at 17.

It is Congress' intent -- not the agency's or the court's -- that is the "ultimate touchstone of preemption analysis." Cipollone, 112 S. Ct. at 2617. Accordingly, the majority below erred in considering the implied conflict arguments advanced by GM and its amicus. The express preemption inquiry is the beginning and the end of the analysis.

Even Assuming That Implied Preemption Analysis Is Proper under the Safety Act, Plaintiff's Claims Are Not Impliedly Preempted Because They Do Not Conflict with the Safety Act or NHTSA's Regulations.

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Even assuming, however, that implied preemption analysis is proper in this case, there is no preemption here since plaintiff's claims do not conflict with the Safety Act or NHTSA's regulations. GM's implied preemption argument is based on the assertion that the introduction of evidence showing that Daniel Cellucci's 1986 Chevrolet Cavalier would have been safer if it had contained an airbag (in addition to a three-point lap belt and shoulder harness) creates an "actual conflict" with the Safety Act and Standard 208. In fact, however, it would create no conflict at all.

First, as in Myrick, 115 S. Ct. at 1488, "it is not impossible for GM to comply with both federal and state law." It is undisputed that Standard 208 permits (but does not require) manufacturers to select a design choice that incorporates an airbag. See 49 C.F.R. Sec. 571.208. That being the case, introduction of evidence concerning the airbag-incorporating alternative design choices available to GM does not in any way "conflict" with the federal regulatory scheme. "As Standard [208] imposes no requirements either requiring or prohibiting [airbag] systems," Myrick, 115 S. Ct. at 1488, GM could have complied with federal and state law by installing an airbag in the vehicle at issue in this case. It could also comply with both laws simply by compensating plaintiff for the injuries its actions caused. Thus, there can be no claim that "it is . . . impossible for GM to comply" with both Standard 208 and a jury verdict finding it liable in this case.

The majority below held, however, that plaintiff's "no-airbag" claim is impliedly preempted because a finding of liability based -- even in part -- on GM's failure to install airbags would deprive GM of its federally mandated "option" to choose among the design choices set forth in Standard 208. This holding was erroneous for two reasons.

First, even if plaintiff contended that GM should have chosen a different "option" under Standard 208, such a contention would not conflict with Congress's intent in passing the Safety Act. All federal standards permit design "options," some implicitly and others explicitly. Nothing in the Safety Act or its legislative history suggests that the preemptive effect of a federal standard turns on whether it implicitly or explicitly permits such choices. See Gingold, 567 A.2d at 325. Moreover, as the Supreme Court of Indiana stated in Wilson, 660 N.E. 2d at 339 (footnotes deleted):

While we would probably dispute that a common law rule cannot prohibit the exercise of an option granted by federal regulation where, as in this case, the underlying federal statute contains an explicit common law savings clause, we find it unnecessary to decide that issue here. Just as the Pokorny court did not find establishing uniform national standards to be Congress's primary purpose in enacting the Safety Act, neither do we find encouraging flexibility and choice to be a primary purpose. As noted above, Congress declared the Safety Act's purpose "to reduce traffic accidents and deaths and injuries to persons relating from traffic accidents." Congress thought that preserving common law claims would further that goal and included the Sec. 1397(k) savings clause in the Act. Excising the effect of that provision from the Act in the name of providing manufacturers flexibility and choice in our view contradicts the primary purpose of the Act.

Second, plaintiff does not contend that GM should have chosen a different "option" under Standard 208. Rather, plaintiff maintains that GM should have done more than the bare minimum required by the "option" it chose. GM was plainly free to install an airbag -- in addition to a three-point lap and shoulder belt -- in the plaintiff's car. Holding it liable for failing to do so would in no way deprive GM of the "option" it chose. Indeed, the "options" argument has been firmly rejected by NHTSA itself. In an amicus brief filed with the U.S. Supreme Court on certiorari in Wood, the United States said that "the Safety Act does not expressly or impliedly preempt design defect tort actions based on the claim that a vehicle was defective simply because it did not contain an airbag." Wood v. General Motors Corp., No. 89-46 (October Term 1989), Brief for the United States as Amicus Curiae, at 7. Moreover, in a brief filed by the United States with the Supreme Court in Myrick, the Solicitor General specifically rejected the argument that the existence of three design options in Standard 208 "in itself preclude[s] state-court judgments based on the failure to install one particular option." Freightliner Corp. v. Myrick, No. 94-286 (October Term 1994), Brief for United States as Amicus Curiae Supporting Respondents, at 29.

GM and its amicus also argued below that permitting plaintiff's claims to proceed would destroy the uniformity the Safety Act is supposedly meant to achieve. The Safety Act, however, has no such stated goal. "The clearest possible expression of legislative purpose is provided in the first section of the Act itself: 'the purpose of this chapter is to reduce traffic accidents and deaths and injuries to persons resulting from traffic accidents.' 15 U.S.C. Sec. 1381." Chrysler Corp. v. Tofany, 419 F.2d 499, 508 (2d Cir. 1969). Moreover, GM's assertion that uniformity is a essential directly conflicts with its contention that GM must be free to choose among various "options." As the Indiana Supreme Court said in Wilson, 660 N.E.2d at 338, "We only add that the regulatory scheme which has emerged from NHTSA is anything but uniform, providing manufacturers three separate choices." See also Pokorny, 902 F.2d at 1122 (rejecting "uniformity" argument).

GM and its amicus also argued below that implied preemption is required by 15 U.S.C. Sec. 1410b(b)-(d), enacted in 1974, which says that Federal motor vehicle safety standards requiring airbags cannot be issued unless they are submitted for a legislative veto. That argument is erroneous for numerous reasons -- including that the provision says nothing about preemption or common law claims and that the Supreme Court declared the legislative veto unconstitutional in Immigration and Naturalization Service v. Chadha, 426 U.S. 919 (1983). The most compelling reason, however, is that, in keeping with Congress' wishes, the provision is no longer good law. By its terms, 15 U.S.C. Sec. 1410b(b)(3)(C) says that the legislative veto will no longer be applicable if a standard requiring a non-belt system is submitted to Congress and is not vetoed. That is precisely what happened in 1977, when the Senate Committee with jurisdiction over NHTSA affirmatively endorsed such a standard. See Motor Vehicle Manufacturers Association, 103 S. Ct. at 2864 n.7.

GM's final implied preemption argument below was that Congress affirmatively endorsed the court decisions finding "no-airbag" claims preempted when it adopted the Intermodal Surface Transportation Efficiency Act of 1991, Pub.L.No. 102-240, 105 Stat. 1914 (1991). In fact, however, the statute takes no position on the preemption issue. Congress, being lobbied by the auto companies, consumer groups, the government, and others, intended the Act to have no effect whatsoever on the courts' resolution of the issue at stake in "no-airbag" cases. That is precisely why section 2508(d) of the Act says that neither the section nor the Act shall "be construed by any court as indicating an intention by Congress to affect, change, or modify in any way the liability, if any, of a motor vehicle manufacturer under applicable law relative to vehicles with or without inflatable restraints." The Senate-House Conference Report on the bill says, "This section is not to be a 'sword' or a 'shield' in litigation or otherwise." H.R. Rep. No. 102-404, 102d Cong., 1st Sess., at 401 (1991).

In sum, even if the issue of implied preemption is reached, it cannot be said that plaintiff's claims "frustrate the accomplishment and execution of the full purposes and objectives of Congress." Myrick, 115 S. Ct. at 1487. In Myrick, the Court said that there was no conflict because "Standard 121 currently has nothing to say concerning ABS devices one way or the other, and NHTSA has not ordered truck manufacturers to refrain from using ABS devices." Id. NHTSA, of course, has not ordered auto manufacturers to refrain from using airbags either. Moreover, while Standard 208 does not impose any requirements "one way or the other" about the use of airbags (as opposed to other restraint systems), the agency does have something to say about their relative merits: at the time it promulgated Standard 208, NHTSA took the position that airbags, when combined with lap and shoulder belts, offered the most safety benefits of any occupant restraint system. See 49 Fed. Reg. at 28986 (1984) ("the most effective system is an airbag plus a lap and shoulder belt."); See also id. at 28963 ("Automatic occupant protection systems that do not totally rely upon belts, such as airbags or passive interiors, offer significant additional potential for preventing fatalities and injuries . . . ; their development and availability should be encouraged through appropriate incentives."). Given NHTSA's recognition of the benefits of airbag technology, it makes no sense to argue that plaintiff's claims frustrate the purposes of the federal regulatory program. Plaintiff's claims are not expressly or impliedly preempted.

Conclusion

For all of the reasons set forth above, this Court should reverse the decision below and remand this case for trial. The Safety Act means what it says: common law claims are not preempted.