Richard P. Traulsen, Esq. – State Bar # 016050
BEGAM, LEWIS, MARKS & WOLFE, P.A.
111 West Monroe Street, Suite 1400
Phoenix, Arizona 85003-1787
(602) 254-6071
Leslie A. Brueckner, Esq.
TRIAL LAWYERS FOR PUBLIC JUSTICE
1717 Massachusetts Avenue, N.W.
Suite 800
Washington, D.C. 20036
(202) 797-8600
Arthur H. Bryant, Esq.
TRIAL LAWYERS FOR PUBLIC JUSTICE
One Kaiser Plaza
Suite 275
Oakland, CA 94612
(510) 622-8202
IN THE SUPREME COURT OF THE
STATE OF ARIZONA
AMPARO HERNANDEZ-GOMEZ, ) Supreme Court
) Case No. T-01-0002-CV
)
Plaintiff/Appellee, ) Court of Appeals
) Case No. 2 CA-CV 98-0188
)
vs. ) Pima County Superior Court
) Case No. CV 274471
VOLKSWAGEN OF AMERICA, )
INC., a New Jersey corporation, and ) PETITION FOR LEAVE TO
VOLKSWAGENWERK ) FILE AMICUS CURIAE
AKTIENGESELLSCHAFT, a ) BRIEF IN SUPPORT OF
foreign corporation, ) PLAINTIFF/APPELLEE
) WITH ATTACHED BRIEF
Trial Lawyers for Public Justice (“TLPJ”), by and through undersigned counsel, respectfully petitions this Court for leave to appear as amicus curiae and to file the attached brief in support of plaintiff/appellee. In support of this motion, petitioner states as follows:
1. Undersigned counsel have read the prior submissions of the parties in this case.
2. TLPJ is a national public interest law firm dedicated to using trial lawyers’ skills and approaches to advance the public good. To this end, TLPJ brings socially significant and precedent-setting civil litigation to protect consumer rights, prevent toxic injuries, preserve the environment, uphold civil rights and civil liberties, defend workers’ rights, safeguard access to our system of justice, and protect the poor and the powerless. In addition, TLPJ has special projects dedicated to fighting unnecessary court secrecy, mandatory arbitration abuse, class action abuse, and federal preemption of injury victims’ claims.
3. TLPJ has extensive expertise in the particular subject matter of this case:
federal preemption of common-law claims involving defective motor vehicles.
Among other things, TLPJ was Counsel of Record for the petitioner in Geier v.
American Honda Motor Co. Inc., 529 U.S. 861 (2000), which held that common-law claims that a car was defective because it lacked an airbag are not expressly
preempted by the National Traffic and Motor Vehicle Safety Act of 1966 (“the
Safety Act”), but that some such claims are impliedly preempted by the 1984
version of the same Federal Motor Vehicle Safety Standard at issue here –
Standard 208. TLPJ was also Counsel of Record for the respondent in
Freightliner Corp. v. Myrick, 514 U.S. 280 (1995), which held that common-law
claims that a truck was defectively designed because it lacked anti-lock brakes are
not preempted by the Safety Act or by any Federal Motor Vehicle Safety
Standard.
4. In this case, Volkswagen is arguing that Geier mandates reversal of this Court’s prior decision in Hernandez-Gomez v. Leonardo, 917 P.2d 258 (1996) (“Hernandez-Gomez II”), which held that the plaintiff’s claims are not preempted by federal law. Given TLPJ’s role as counsel in Geier, we are in a unique position to address this argument and explain why, in fact, Geier wholly supports this Court’s no-preemption holding in Hernandez-Gomez II. As is explained more fully in the annexed brief, Geier forcefully confirms that there is no preemption in this case, which is about whether a car that rolled over should have had manual lapbelts – not airbags – and involves a prior – and entirely different – version of Standard 208.
For the foregoing reasons, petitioner respectfully asks the Court to accept the attached brief.
RESPECTFULLY SUBMITTED BY:
_______________________________________
Richard P. Traulsen, Esq. – State Bar # 016050
BEGAM, LEWIS, MARKS & WOLFE, P.A.
111 West Monroe Street, Suite 1400
Phoenix, Arizona 85003-1787
(602) 254-6071
Leslie A. Brueckner, Esq.
TRIAL LAWYERS FOR PUBLIC JUSTICE
1717 Massachusetts Avenue, N.W.
Suite 800
Washington, D.C. 20036
(202) 797-8600
Arthur H. Bryant, Esq.
TRIAL LAWYERS FOR PUBLIC JUSTICE
One Kaiser Plaza
Suite 275
Oakland, CA 94612
(510) 622-8202
April 26, 2002
AN ORIGINAL AND SIX COPIES OF THE FOREGOING
PETITION, TOGETHER WITH ATTACHED AMICUS
BRIEF, WERE HAND-DELIVERED THIS 29th DAY OF APRIL,
2002 TO:
Clerk of the Supreme Court
Supreme Court of Arizona
1501 West Washington
Phoenix, Arizona 85007
AND TWO COPIES MAILED THIS 29th DAY OF
APRIL, 2002 TO:
Gregory G. Wasley, Esq.
LAW OFFICE OF CARTER MOREY
82 S. Stone Avenue
Tucson, Arizona 85701
Attorney for Plaintiff/Appellee
Dale Haralson, Esq.
DALE HARALSON, P.C.
1 South Church Ave., Suite 900
Tucson, Arizona 85701
Attorney for Plaintiff/Appellee
William T. Burghart, Esq.
PESHKIN, KOTALIK & BURGHART
3030 N. Central Avenue, Suite 1106
Phoenix, Arizona 85012
Attorney Defendant/Appellant
____________________________
Richard C. Traulsen
IN THE SUPREME COURT OF THE
STATE OF ARIZONA
AMPARO HERNANDEZ-GOMEZ, )
)
) Supreme Court
Plaintiff/Appellee, ) Case No. T-01-002-CV
)
) Court of Appeals
vs. ) Case No. 2 CA-CV 98-0188
)
VOLKSWAGEN OF AMERICA, ) Pima County Superior Court
INC., a New Jersey corporation, and ) Case No. CV 27441
VOLKSWAGENWERK )
AKTIENGESELLSCHAFT, a )
foreign corporation, )
AMICUS CURIAE BRIEF
of
TRIAL LAWYERS FOR PUBLIC JUSTICE, P.C.
Richard P. Traulsen, Esq. – State Bar # 016050
BEGAM, LEWIS, MARKS & WOLFE, P.A.
111 West Monroe Street, Suite 1400
Phoenix, Arizona 85003-1787
(602) 254-6071
Leslie A. Brueckner, Esq.
TRIAL LAWYERS FOR PUBLIC JUSTICE
1717 Massachusetts Avenue, N.W., Suite 800
Washington, D.C. 20036
(202) 797-8600
Arthur H. Bryant, Esq.
TRIAL LAWYERS FOR PUBLIC JUSTICE
One Kaiser Plaza, Suite 275
Oakland, CA 94612
(510) 622-8202
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .ii
B. The Applicable Federal Regulatory Standard
C. This Court’s Prior Decisions
E. The Court of Appeals’ Post-Geier Decision
ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
GEIER DID NOT UNDERMINE OR INVALIDATE THIS COURT’S
HOLDING IN HERNANDEZ-GOMEZ II
A.Geier Supports this Court’s Holding that Plaintiff’s Common-Law
Claims Are Not Impliedly Preempted Because This Case Involves
B.Geier Supports a Finding of No Preemption Here Because This is
a “No-Lap-Belt” Case, Not a “No-Airbag” Case
C.VW’s Contention that Geier Requires a Finding of Implied
Preemption Because Plaintiff Seeks to Hold VW Accountable for
Choosing an “Option” Provided by Federal Law is Wrong on Both
TABLE OF AUTHORITIES
Cases:
Carasquilla v. Mazda Motor Corp., 166 F. Supp. 169 (M.D. Pa. 2001). . . . . . . . 18
Freightliner Corp. v. Myrick, 514 U.S. 280 (1995). . . . . . . . . . . . . . . . . . . . . . . . 12
Geier v. American Honda Motor Co. Inc., 529 U.S. 861 (2000). . . . . . . . . . .passim
Hernandez-Gomez v. Leonardo, 884 P.2d 183 (1994). . . . . . . . . . . . . . . . . . . . . . .3
Hernandez-Gomez v. Leonardo, 917 P.2d 238 (1996). . . . . . . . . . . . . . . . . . passim
Hurley v. Motor Coach Indus., Inc., 222 F.3d 377 (7th Cir. 2000),
cert. denied, 531 U.S. 1148 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18
James v. Mazda Motor Corp., 222 F.3d 1323 (11th Cir. 2000),
cert. denied, 532 U.S. 921 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18
Motor Vehicle Mfrs. Ass’n v. State Farm Mut., 463 U.S. 29 (1983). . . . . . . . 1, 2, 3
Statutes and Regulations:
Federal Motor Vehicle Safety Standard 208
National Traffic and Motor Vehicle Safety Act of 1971
32 Fed. Reg. 2,408 (1967)
37 Fed. Reg. 3,911 (1972)
42 Fed. Reg. 34,289 (1977)
46 Fed. Reg. 53,419 (1981)
49 Fed. Reg. 28,990 (1984)
Miscellaneous:
Brief of the United States as Amicus Curiae in Freightliner v. Myrick,
514 U.S. 280 (1995)
Brief of the United States as Amicus Curiae in Geier v. American Honda Motor Co. Inc., 529 U.S. 861 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18
Brief of the United States as Amicus Curiae in Wood v. General Motors Corp.,
865 F.2d 395 (1st Cir. 1988), cert. denied, 494 U.S. 1065 (1990)
Because the facts have been extensively briefed by the parties to this case, we present only a brief overview here to place the legal analysis in context.
This case involves a rollover accident in a 1981 Volkswagen (“VW”) Rabbit car. The car included a passive shoulder belt, but did not include a manual lap belt. When the car rolled over onto its roof, the plaintiff was funneled into the roof of the car by the shoulder belt, sustaining paralyzing injuries. Expert testimony at trial established that, if the car had included a manual lap belt, the plaintiff’s injuries would have been avoided.
B. The Applicable Federal Regulatory Standard.
Understanding the preemption analysis in this case requires a brief overview of the “complex and convoluted history” of Motor Vehicle Safety Standard 208, which governs passenger restraint systems in motor vehicles. See Motor Vehicle Mfrs. Ass’n v. State Farm Mut., 463 U.S. 29, 35 (1983) (describing history of Standard 208); Geier v. American Honda Motor Co. Inc., 529 U.S. 861, 875-76 (2000) (same). As originally issued by the Department of Transportation in 1967, Standard 208 merely required manufacturers to install manual seat belts in passenger cars. State Farm, 463 U.S. at 35 (citing 32 Fed. Reg. 2,408, 2,415 (1967)). In 1972, the regulation was amended to give manufacturers the choice (for new vehicles manufactured between 1972 and 1975) of either installing manual seatbelts (along with an “ignition interlock” device) or of installing passive systems (such as automatic seatbelts or airbags) that met certain minimum standards. See 37 Fed. Reg. 3,911 (1972). Under this basic options framework (which was subsequently amended in various ways not relevant here, see Geier, 529 U.S. at 875-76), manufacturers were free to choose whatever system they preferred, and were not subject to any temporal phase-in of any particular form of technology.
In 1977, however, NHTSA decided that the time had come to move towards a mandatory passive restraint requirement that would replace the voluntary options previously permitted. It promulgated a rule that sought to phase-in mandatory passive restraints over a three-year period, starting in the 1982 model year. See 42 Fed. Reg. 34,289 (1977). Cars manufactured prior to 1982 – such as the 1981 Rabbit car at issue in this case – were subject to the prior version of Standard 208 that did not mandate any passive restraints and did not include any “phase-in” of new technology. Id. at 34,297.
The mandatory passive phase-in portion of the 1977 standard was rescinded in October 1981 and never took effect. 46 Fed. Reg. 53,419 (1981). The decision to rescind that portion of the standard was, however, overturned by the U.S. Supreme Court in Motor Vehicle Mfrs. Ass’n v. State Farm, 463 U.S. 29 (1983). In the wake of State Farm, NHTSA promulgated the 1984 version of Standard 208 that was later examined in Geier. The 1984 version of Standard 208 at issue in Geier resembles the passive-restraint portion of the 1977 rule that – as explained above – never took effect. Except to the extent necessary to understand Geier, its details are irrelevant here, since it was never applicable to the 1981 Rabbit at issue in this case.
C. This Court’s Prior Decisions.
VW’s main line of defense in the case has been that the plaintiff’s claims are preempted by federal law – specifically, by the National Traffic and Motor Vehicle Safety Act of 1971 (the “Safety Act”) and by the then-applicable version of Standard 208 that gave VW the option to install the particular passive restraint system that it chose for plaintiff’s car. This defense was twice rejected by this Court, first on the ground that the Safety Act expressly preserves all common-law claims (see Hernandez-Gomez v. Leonardo, 884 P.2d 183 (1994)), and then on the ground that the plaintiff’s claims do not conflict with the applicable version of Standard 208. Hernandez-Gomez v. Leonardo, 917 P.2d 238 (1996) (“Hernandez-Gomez II”).
In Hernandez-Gomez II, this Court noted that the version of Standard 208 applicable to plaintiff’s car allowed manufacturers to choose one of three options for a safety restraint system: the first required a complete passive protection system, the second required a head-on passive protection system, and the third required a lap and shoulder belt protection system with belt warning. VW chose to equip the 1981 Rabbit car with an option two system, which did not include a lap belt.
In finding no preemption of plaintiff’s common-law claims, Hernandez-Gomez II emphasized that the option chosen by VW merely applied to the performance requirements of a restraint system in a “frontal crash.” 917 P.2d at 245. Given that the plaintiff was injured in a rollover crash, the court concluded that her lawsuit did not conflict with federal regulatory purposes. Id. at 246. The Court further noted that the federal government had specifically authorized VW to install manual lap belts in order to augment its option two system. Id. Given this express authorization to install precisely the same system advocated by plaintiff here, the Court concluded that “imposing common-law liability for failure to include manual lap belts for protection in rollover accidents does not take away a choice. . . . Rather, the effect of common-law liability here would be to compensate Plaintiff for injuries allegedly caused by the manufacturers’ choice not to do something allowed under the standards: install manual lap belts to provide rollover protection.” 917 P.2d at 248 (emphasis in original). “Thus,” the Court concluded, “there is no obstruction of Congress’ objectives.” Id.
Following the Court’s decision in Hernandez-Gomez II, the case went to trial, yielding a jury verdict of $3.1 million dollars. VW appealed this decision, this time claiming that Hernandez-Gomez II was effectively overruled by the decision of the U.S. Supreme Court in Geier.
In Geier, the U.S. Supreme Court addressed the preemptive effect of the 1984 version of Standard 208, which required auto manufacturers gradually to “phase-in” the use of passive restraint devices on the driver’s side of automobiles, on a common-law claim that a 1987 Honda Accord was defectively designed because it lacked a driver’s-side airbag. Geier explained that, unlike the typical minimum safety standards promulgated by NHTSA – and unlike the version of Standard 208 applicable in this case – the 1984 version of Standard 208 “deliberately sought variety – a mix of different passive restraint devices. It did so by setting a performance requirement for passive restraint devices and allowing manufacturers to choose among different passive restraint mechanisms, such as airbags, automatic belts, or other passive restraint technologies to satisfy that requirement.” 529 U.S. at 878. The Court emphasized that NHTSA sought a “mix of different passive restraint devices” because of safety concerns associated with airbags. Id. at 878-79. Geier further stressed that, in NHTSA’s view, a “mix of [such] devices would help develop data on comparative effectiveness, would allow the industry time to overcome the safety problems and the high production costs associated with airbags, and could facilitate the development of alternative, cheaper, and safer passive restraint systems.” Id. at 879. To help achieve these goals, the 1984 version of Standard 208 mandated that car manufacturers phase-in the use of passive restraints over a period of several years.
Against this backdrop, Geier held that a common-law damages action holding a manufacturer liable for its failure to install an airbag in 1987 cars – when only 10% of cars were required to have passive restraints – would conflict with NHTSA’s goal of encouraging a gradual phase-in of a mixture of passive restraint devices. Id. at 880. The Court wrote that “a rule of state tort law imposing [liability for failure to install airbags] . . . would have presented an obstacle to the variety and mix of devices that the federal regulation sought.” Id.
E. The Court of Appeals’ Post-Geier Decision.
In the wake of Geier, VW argued – and the Arizona Court of Appeals held – that this Court’s prior conclusion in Hernandez-Gomez II was no longer good law. See 32 P.3d 424 (2001). In reaching this conclusion, the lower court focused on the fact that, in Geier, the regulatory commentary accompanying the 1984 version of Standard 208 emphasized that the agency sought to provide the manufacturers with a range of choices among different passive restraint devices. Id. at 427. Reasoning that the version of Standard 208 at issue here also gives manufacturers “an unfettered choice” of technological options, the lower court held that Geier mandates reversal of Hernandez-Gomez II. Id. at 428.
GEIER DID NOT UNDERMINE OR INVALIDATE THIS COURT’S
HOLDING IN HERNANDEZ-GOMEZ II.
While the plaintiff and other amici have provided several reasons why plaintiff’s claims are not preempted, we write separately to emphasize three reasons why Geier requires a finding of no preemption here. First, the U.S. Supreme Court’s reasoning in Geier fully supports this Court’s holding in Hernandez-Gomez II that plaintiff’s claims are not impliedly preempted on the ground that this case involves a rollover crash and the passive restraint option chosen by VW was merely designed to provide frontal crash protection. Second, this is a “no-lap-belt” case, not a “no-airbag” case, and the federal government has never expressed any concerns about lap belts of the sort it expressed about airbags – and that led to the Supreme Court’s implied preemption finding in Geier. To the contrary, the federal government has consistently encouraged the installation and use of manual lap belts, and specifically told VW it was free to install lap belts in the 1981 Rabbit car at issue here. Third, VW’s contention that Geier requires a finding of implied preemption here because plaintiff seeks to hold VW accountable for choosing an “option” provided by federal law is wrong on both the facts and the law. As a factual matter, plaintiff does not contend that VW chose the wrong option; she contends that VW should have done more than the bare minimum required to comply with the option it chose. As a legal matter, Geier does not hold that auto manufacturers are immune from liability whenever a federal regulation provides them with options and a common-law claim alleges they should have chosen an option different than they did. In fact, in a series of amicus briefs filed with the U.S. Supreme Court (and specifically endorsed in Geier, see 529 U.S. at 883), the federal government itself has consistently rejected car manufacturers’ attempts to advance such a broad preemption argument. For all of these reasons, VW’s argument that Geier requires reversal of Hernandez-Gomez II should be rejected.
A. Geier Supports this Court’s Holding that Plaintiff’s Common-Law Claims Are Not Impliedly Preempted Because This Case Involves a Rollover Crash.
The first reason Geier requires a finding of no preemption here is the same reason this Court gave in Hernandez-Gomez II: this case involves a rollover crash. In order to determine whether the plaintiff’s common-law claims were impliedly preempted in Geier, the Supreme Court looked at the federal regulation in place at the time the car was manufactured and closely examined whether there was a conflict between the plaintiffs’ theory of liability and the policy goals the federal agency articulated when it promulgated that regulation. See 529 U.S. at 875-886. That is precisely what this Court did in Hernandez-Gomez II. It carefully examined the requirements and purpose of the portion of Standard 208 that VW complied with, found that it “was applicable only to the front-end crash protection aspect of performance,” and properly held that a state jury verdict holding VW liable for failing to install a manual lap belt to protect car occupants from rollover crashes would in no way conflict with the federal government’s stated reasons for issuing the allegedly-preemptive federal regulation. See 917 P.2d at 246. This approach and holding were perfectly consistent with the Supreme Court’s later approach and holding in Geier. For that reason alone, this Court should reaffirm its “no preemption” ruling in Hernandez-Gomez II.
B. Geier Supports a Finding of No Preemption Here Because This is a “No-Lap-Belt” Case, Not a “No-Airbag” Case.
The second reason Geier requires a finding of no preemption here is that this is a “no-lap-belt” case, not a “no-airbag” case. The basis of the Supreme Court’s preemption ruling in Geier was that, in issuing the 1984 version of Standard 208, the federal government expressed grave concerns about auto manufacturers installing airbags in too many cars too quickly. The agency stated that “airbags brought with them their own special risks to safety, such as the risk of danger to out-of-position occupants (usually children) in small cars”; that airbags would be “significantly more expensive than other passive restraint devices” (and that “the high replacement cost – estimated to be $800 – could lead car owners to refuse to replace them after deployment”); and that “the public, for reasons of cost, fear, or physical intrusiveness might resist installation or use” of airbags. 529 U.S. at 877-78. The Court noted, moreover, that the agency affirmatively rejected a rule that would have required airbags in all passenger vehicles “because of safety concerns (perceived or real) associated with airbags, which concerns threatened a ‘backlash’ more easily overcome ‘if airbags’ were ‘not the only way of complying.’” Id. at 879 (quoting 49 Fed. Reg. 28,990, 29,001 (1984)).
In response to these concerns, the federal government designed the 1984 version of Standard 208 to achieve a “gradual phase-in of passive restraints” that would “help develop data on comparative effectiveness, would allow the industry time to overcome the safety problems and the high production costs associated with airbags, and would facilitate the development of alternative, cheaper, and safer passive restraint systems.” Id. at 879 (emphasis added). In light of these stated reasons for developing the 1984 version of Standard 208, Geier held that a common-law claim holding an auto manufacturer liable for failing to install airbags in a 1987 automobile (when only 10% of automobiles were required to have passive restraints) would interfere with the federal government’s goals – and thus was preempted.
This case, however, involves a no-lap-belt claim, and the federal government has never expressed any concerns about manufacturers putting manual lap belts in too many cars too quickly. To the contrary, it has repeatedly encouraged manufacturers to install manual lap belts in cars, and it has done almost anything it could to encourage drivers and passengers to use those belts. In fact, in the very version of Standard 208 at issue in Geier, the federal government said it would eliminate the passive restraint phase-in entirely if enough states enacted laws requiring auto drivers and passengers to use their manual belts. See 529 U.S. at 881. Moreover, if this Court reviews both the contents and the stated reasons given by the government for the version of Standard 208 complied with by VW in this case, it will find no suggestion whatsoever of any concern by the federal government about manual lap belts being installed by manufacturers or used by auto occupants.
If any doubt remained as to the lack of conflict between plaintiff’s claims and the federal government’s regulatory purposes, it would be laid to rest by the fact that NHTSA specifically authorized VW to install the exact same restraint system advocated by plaintiff here. As plaintiff explained in her petition for review by this Court, in 1974 VW asked NHTSA if it could install manual lap belts along with the passive shoulder belt that it installed to comply with S4.1.2.2 (option two) – and NHTSA said yes. See Petition for Review at 8. Thus, when confronted with the propriety of the choice advocated by plaintiff here, the agency made clear that the use of seat belts did not in any way undermine or frustrate any federal purposes. This is not surprising because – in contrast to the controversial history of airbags – the federal government has consistently advocated the installation and use of manual lap belts in passenger vehicles. In short, because this case is about lap belts, and not airbags, Geier’s preemption finding is inapplicable on its face.
VW nonetheless insists that Geier controls the outcome here because, says VW, “[i]t is manifest that the policies underlying the 1980 version of FMVSS 208 were identical to those underlying the 1984 version of FMVSS 208 [at issue in Geier].” VW Opp. Br. at 9 (emphasis in original). In so arguing, VW points to the fact that, in 1977, the agency had promulgated a version of the Standard 208 that – like the 1984 version – included a mandatory phase-in of passive restraints. See id. at 10.
What VW ignores is that the mandatory phase-in portion of the 1977 rule
was not applicable to the vehicle in this case, which was manufactured in 1981,
before the passive restraint portion of the rule became effective. Thus, the
regulatory framework that VW points to as comparable to Geier was never even
applicable to the car at issue here! Instead, the plaintiff’s car was subject to the
options framework of the earlier version of the rule, which permitted
manufacturers to choose either manual or passive restraint systems and did not
impose any phase-in requirement at all. In light of these facts, it is improper to
argue that the policies underlying the rule at issue here and the 1984 version of the
standard at issue in Geier are identical – nothing could be further from the truth.
C. VW’s Contention that Geier Requires a Finding of Implied Preemption Because Plaintiff Seeks to Hold VW Accountable for Choosing an “Option” Provided by Federal Law is Wrong on Both the Facts and the Law.
VW also claims that Geier controls the outcome here because, according to VW, Geier held that “a plaintiff cannot premise liability on an automobile manufacturer’s choice among the safety-restraint options in [Standard 208] . . ..” VW Supp. Br. at 10. This argument fails as a matter of fact and as a matter of law.
As a matter of fact, VW’s argument incorrectly assumes that plaintiff here is challenging the car manufacturer’s decision to comply with the specific passive-restraint option it chose from among those permitted by the applicable version of Standard 208. In reality, however, plaintiff is not arguing that VW should have installed manual lap belts instead of the passive restraint system it chose to install; rather, the argument is that VW should have installed manual lap belts in addition to the passive restraint system it chose to install. In other words, plaintiff does not contend that VW should have chosen a different passive restraint option. She simply contends that VW should have done more than the bare minimum required by that option. And Geier makes plain that there is no preemption “where federal law creates only a floor, i.e., a minimum safety standard” and the plaintiff is arguing that the defendant should have done more than the minimum required. See 529 U.S. at 867.
As a matter of law, VW’s argument mischaracterizes Geier, which does not hold that the mere existence of regulatory options serves to preempt all common-law claims relating to those options. Instead, Geier focused on the highly particularized goals underlying the 1984 version of Standard 208 as the basis for its implied preemption ruling. Specifically, Geier held that, because the federal government had made clear that it wanted to encourage a diverse array of passive restraint technology, and to phase-in the use of passive restraints gradually over time, a jury verdict holding a manufacturer liable for not installing airbags would undermine federal purposes (a) by pushing manufacturers to install airbags in all their cars (thereby undercutting the “technological diversity” goal of Standard 208) and (b) by pushing manufacturers to do so quickly (thereby undercutting the gradual-phase-in goal of Standard 208). See 529 U.S. at 881. Nowhere in the opinion is there any suggestion that the mere presence of regulatory options, standing alone, is sufficient to trigger federal preemption – especially not in a case where, as here, the plaintiff is seeking to hold a manufacturer liable for failing to install a device, the manual lap belt, that the federal government has always sought to promote.
In addition, the federal government itself has disavowed the extremely
broad, “options-always-preempt” argument advocated by VW here. In Geier, the
Supreme Court gave “special weight” to the position that NHTSA had taken
“consistently over time” in a series of amicus filed with the Court in three
different cases – Wood v. General Motors Corp., 865 F.2d 395 (1st Cir. 1988),
cert. denied, 494 U.S. 1065 (1990); Freightliner Corp. v. Myrick, 514 U.S. 280
(1995); and Geier. See 529 U.S. at 883, 885. In those very briefs, NHTSA
specifically rejected the broad “options” argument advanced by VW here and
adopted by the court below.
Thus, in the Brief of the United States as Amicus Curiae in Wood, the federal government stated:
Respondent argues that FMVSS 208 preempts state tort claims because that standard has always allowed manufacturers to use various types of occupant restraints. We disagree with this reasoning. Nothing in the Safety Act or FMVSS 208 confers on car makers a “right” to comply with the federal standards without tort liability, and [the Safety Act’s savings clause] proves that Congress did not grant any such immunity. That state tort law may compel an auto maker as a practical matter to choose one of the options authorized by federal law also does not necessarily establish an actual conflict between federal and state law. Federal standards are “minimum standard[s],” 15 U.S.C. 1391 (2), permitting manufacturers to use any design that satisfies federal requirements. If any design “permitted” in this sense could not be the subject of a common law design defect claim, manufacturers would obtain by implication what Congress expressly denied them in [the Safety Act’s savings clause]: immunity from common law liability by complying with minimum federal standards. That result would be contrary to Congress’s statutory design, which was to supplant direct state regulation of vehicle design, but to leave the common law intact absent an actual conflict with federal standards. Thus, the mere fact that manufacturers may comply with federal law by installing one of several types of occupant restraint systems does not mean, standing alone, that a state law tort action seeking to impose liability for failing to install airbags is preempted.
Id. at 14-15 (citations and footnote deleted; emphasis added).
Similarly, in the Brief of the United States as Amicus Curiae in Freightliner, the federal government noted that, “[a]lthough the majority of courts to have considered the question have concluded that ‘no-airbags’ suits are preempted, they have done so on a broader theory of implied preemption with which the United States does not agree, i.e., that the existence of ‘options’ to comply with Standard 208 in itself precludes state-court judgments based on the failure to install one particular option.” Id. at 28-29 n.15.
Finally, in the Brief of the United States as Amicus Curiae in Geier, the federal government said:
We therefore agree with petitioners that their claims are not preempted merely because the Secretary made airbags one of several design options that manufacturers could choose. We disagree, however, with the contention that the Secretary provided options because she had no statutory authorization to do otherwise. The Secretary could have imposed performance requirements that effectively required an airbag design. As we explain at pages 23-26, infra, the Secretary chose not to do so in order to encourage the provision of a variety of passive restraints, because she determined that would best promote safety. Petitioners’ claims are preempted because they would frustrate that policy judgment.
Id. at 21 n.18 (citations deleted; emphasis added).
It was precisely this reasoning, articulated by NHTSA “consistently over
time,” that the Supreme Court adopted in Geier. See 529 U.S. at 883. Thus, the
broad “options” argument advocated by VW and adopted by the court below
contradicts the federal government’s long-held views and ignores both the
Supreme Court’s narrow holding and teachings in Geier. For this reason, too, the
decision below should be reversed and this Court should find no preemption of
plaintiff’s claims in this case.
For the foregoing reasons, amicus curiae Trial Lawyers for Public Justice respectfully urges the Court to reverse the decision below and reaffirm its prior ruling in Hernandez-Gomez II that plaintiff’s no-lap-belt claims are not preempted.
RESPECTFULLY SUBMITTED BY:
_______________________________________
Richard P. Traulsen, Esq. – State Bar # 016050
BEGAM, LEWIS, MARKS & WOLFE, P.A.
111 West Monroe Street, Suite 1400
Phoenix, Arizona 85003-1787
(602) 254-6071
Leslie A. Brueckner, Esq.
TRIAL LAWYERS FOR PUBLIC JUSTICE
1717 Massachusetts Avenue, N.W.
Suite 800
Washington, D.C. 20036
(202) 797-8600
Arthur H. Bryant, Esq.
TRIAL LAWYERS FOR PUBLIC JUSTICE
One Kaiser Plaza
Suite 275
Oakland, CA 94612
(510) 622-8202
April 29, 2002