Less than two years ago, the United States Supreme Court reemphasized that, in determining whether federal legislation preempts state common law claims, courts must be guided by "two presumptions about the nature of pre-emption." Medtronic Inc. v. Lohr, 116 S. Ct. 2240, 2250 (1996) ( "Medtronic"). First, the Court stressed, preemption analysis begins with a strong presumption against preemption. "[W]e start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." Id. at 2250 (emphasis added). Second, the Court again made clear that the sole task of preemption analysis is to ascertain Congress' intent -- by carefully reviewing Congress' words and its reasons for adopting them. It said: "[T]he purpose of Congress is the ultimate touchstone in every pre-emption case." Id.
Remarkably, Toyota ignores both of these teachings. First, Toyota's brief
-- like the decisions of the Fourth Department in Gardner v. Honda Motor
Co., 145 A.D.2d 41, 536 N.Y.S.2d 303 (4th Dept. 1988) and Panarites v. Williams,
216 A.D.2d 874, 629 N.Y.S.2d 359 (4th Dept. 1995) -- does not even mention
the presumption against preemption. As a result, Toyota's arguments are
flawed from the start: they fail to give proper weight to "both federalism
concerns and the historic primacy of state regulation for matters of health
and safety." Medtronic, 116 S. Ct. at 2250.
Second, even though the question presented by this appeal is whether Congress
intended Toyota's compliance with Federal Motor Vehicle Safety Standard
208 to exempt Toyota from liability under common law, Toyota spends the
first 52 pages of its 60-page brief avoiding the words Congress actually
used to answer the question: "Compliance with any Federal motor vehicle
safety standard does not exempt any person from any liability under common
law." 15 U.S.C. § 1397(k). When it finally confronts these words,
Toyota simply argues that they do not mean what they say. Moreover, despite
Medtronic's command, Toyota never mentions the reason that Congress adopted
these words -- the colorful and prophetic Congressional testimony of Tom
Triplett:
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").
Toyota and its amicus ignore the presumption against preemption and avoid
Congress' plain words (as well as Mr. Triplett's testimony) for as long
as they can for a simple reason: they cannot overcome them. That being so,
they take two alternative tactics instead.
First, Toyota and its amicus rely heavily on the supposed "weight of
authority" in their favor. See, e.g., Toyota's Brief at 3-5. What they
neglect to point out, however, is that, for the first twenty years after
the Safety Act was adopted in 1966, the nation's appeals courts unanimously
found no preemption. The supposed "weight of authority" relied
on by Toyota began to issue only after the Third Circuit authored its since-rejected
decision in Cipollone v. Liggett Group, Inc., 789 F.2d 181 (3d Cir. 1986),
rev'd in part and aff'd in part, 112 S.Ct. 2608 (1992), expanding the implied
preemption doctrine to find preemption of certain cigarette-related claims
in violation of Congress' intent. Since that time, three U.S. Supreme Court
preemption decisions – Cipollone v. Liggett Group, Inc., 112 S.Ct.
2608 (1992) ("Cipollone"); Freightliner Corp. v. Myrick, 115 S.
Ct. 1483 (1995) ("Myrick"); and Medtronic – have effectively
overruled the vast majority of the cases on which Toyota relies. Indeed,
Toyota falsely states that the Appellate Division's finding of no preemption
has been rejected by all five Circuit Courts of Appeal to address the question,
when the Eleventh Circuit explicitly recanted the implied preemption ruling
in the case cited by Toyota -- Taylor v. General Motors Corp., 875 F. 2d
816 (11th Cir. 1989), cert. denied, 494 U.S. 1065 (1990) -- shortly after
Cipollone was issued, see Myrick v. Freuhauf Corp., 13 F.3d 1516 (11th Cir.
1994), aff'd sub nom., Myrick, supra, and has recently reaffirmed its position
that "standards promulgated under the National Traffic and Motor Vehicle
Safety Act do not preempt common law claims." Doyle v. Volkswagenwerk
Aktiengelellschaft, 114 F.3d 1134 (11th Cir. 1997). In fact, since the Supreme
Court clarified federal preemption doctrine in Cipollone, Myrick, and Medtronic,
the Supreme Courts of New Hampshire, Indiana, Arizona, and Ohio have all
rejected federal preemption of so-called "no-airbag" claims. 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); Wilson v. Pleasant
and General Motors Corp., 660 N.E.2d 327 (Ind. 1995); Munroe v. Galati,
938 P.2d 1114 (Ariz. 1997); Minton v. Honda of America Mfg., Inc., 684 N.E.
2d 648 (Ohio 1997). The supposed "weight of authority" relied
upon by Toyota is, therefore, hardly persuasive.
The other tactic employed by Toyota and its amicus is to repeatedly assert
that plaintiffs are really challenging the federal government's regulatory
decision to adopt Standard 208 and seeking to establish a "common law
standard requir[ing] manufacturers to install airbags, not seatbelts, in
all cars." Toyota's Brief at 25. See also PLAC's Brief at 3-4 ("Plaintiffs'
radical theory [asks] state judges and juries [to] reach the conclusion
that the federal policy was inadequate and wrongheaded.") Nothing could
be farther from the truth. When the 1991 Toyota Tercel at issue in this
case was manufactured, Federal Motor Vehicle Safety Standard 208 required
all cars had to have, at a minimum, a manual lap belt and motorized shoulder
harness, an airbag, or some other system that provided at least the required
level of automatic crash protection to vehicle occupants. See 49 C.F.R.
§ 571.208. It also allowed all manufacturers to do more than the bare
minimum required (including install a manual lap belt, an automatic shoulder
harness, and an airbag in all cars) and relied on the threat of "potential
liability for any deficient system," 49 Fed. Reg. 29000 (1984), to
prompt the manufacturers to choose the safest designs. Plaintiffs seek compensation
in full accordance with those terms. Plaintiffs assert that the car at issue
in this case -- the small, light, poorly-designed 1991 Toyota Tercel --
was not reasonably safe and did not adequately protect Caryn Drattel from
injury. Plaintiffs further maintain that, despite its size, weight, and
numerous design defects, the 1991 Toyota Tercel would have been reasonably
safe and Caryn Drattel would not have been seriously injured if it had contained
an airbag in addition to its manual lap belt and shoulder harness. At this
point in the proceedings, however, Toyota contends that, even if the Drattels
are right, Toyota is immune from common law liability simply because it
complied with Standard 208.
The Appellate Division considered this contention and firmly rejected it
: "Upon consideration of the purpose of the Safety Act, its language
and its legislative history, we conclude that Congress did not intend to
preempt State common-law claims." R. 963. That conclusion was plainly
correct. No matter how much Toyota tries to avoid them, 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. § 1397(k).
Did Congress intend Toyota's compliance with Federal Motor Vehicle Safety
Standard 208 to exempt Toyota from liability under common law, when 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 Appellate Division below: No.
STATEMENT OF THE CASE
On November 19, 1991, Caryn Drattel was driving a 1991 Toyota Tercel down
Main Street in Matewan, New Jersey, at approximately 25 miles per hour when
another automobile, also going approximately 25 miles per hour, veered across
the road and crashed into the front of her car. Caryn's Toyota was equipped
with a manual lap belt, which she had connected, and a motorized shoulder
harness, which was engaged. R. 26. Partly because the Tercel is such a small
and light car, and partly because of the way the Tercel was designed, the
force of the crash pushed the steering column and front end of the car substantially
inward. R. 27. The lap belt and shoulder harness were ineffective in protecting
Caryn and, as a result, her head hit the car's interior so hard that she
suffered permanent brain damage. Id. Caryn is now unable to work, care for
herself, or care for her infant child. Id.
On March 9, 1993, Jason Drattel, Caryn's husband and appointed legal guardian,
filed this lawsuit seeking damages under New York common law against Toyota
Motor Corporation, Toyota Motor Sales U.S.A., Inc. and Toyota Motor Distributors,
Inc. (collectively, "Toyota") on theories of negligence, breach
of express and implied warranties, and strict liability in tort. R. 244-55.
The Drattels allege, among other things, that Caryn's 1991 Toyota Tercel
was defectively designed because the front end of the car failed to absorb
the impact of the crash without intruding into the car, the steering wheel
and system also intruded into the car, improper welding caused the sheet
metal in the front end to buckle and separate, the door and the A-pillar
lacked structural integrity, and the seat belt and shoulder harness failed
to adequately restrain Caryn during the crash. R. 299-302.
To recover damages from Toyota under New York law, the Drattels must do
more than prove that the actual design used by Toyota was defective. They
must also prove that there was an alternative design available which would
have made the car reasonably safe or mitigated the dangers of the car's
other design defects. See NYPJI 2:141. To meet this burden, the Drattels
propose to show that, if Caryn's 1991 Toyota Tercel had contained a driver's-side
airbag, in addition to the manual lap belt and automatic shoulder harness
(or in addition to a simple three-point manual lap belt and shoulder harness),
Caryn would not have been seriously injured in the crash. R. 302. They do
not contend that all cars manufactured without airbags in 1991 were defectively
designed. Nor do they claim that this car was defectively designed solely
because it lacked an airbag. They do claim, however, that given the small
size and weight of the 1991 Toyota Tercel, and the numerous defects in its
design, the addition of an airbag would have made it reasonably safe and
prevented Caryn's injuries. R. 298.
When the 1991 Toyota Tercel at issue in this case was manufactured, federal
regulations promulgated pursuant to the National Traffic and Motor Vehicle
Safety Act of 1966, 15 U.S.C. §§ 1381 et seq. -- specifically,
Federal Motor Vehicle Safety Standard 208 -- did not prohibit Toyota from
installing airbags in the Tercel or any other car. 49 C.F.R. § 571.208.
Standard 208 did, however, require Toyota to install some form of passive
restraint in all of its 1991 model-year cars. Id. All cars had to have,
at a minimum, a manual lap belt and motorized shoulder harness, an airbag,
or some other system that provided at least the required level of automotive
crash protection to vehicle occupants. Id. But Standard 208 did not dictate
any particular design, prevent Toyota from doing more than the minimum required,
or preclude Toyota from installing a manual lap belt, a motorized shoulder
harness, and an airbag in any car. Id.
Despite the foregoing, on March 24, 1995, Toyota moved for partial summary judgment dismissing plaintiff's complaint "to the extent that it relies upon the absence of air bags" and for a protective order barring all discovery related to airbags on the sole ground that the 1991 Toyota Tercel complied with Standard 208. R. 231. In its motion and subsequent briefing, Toyota relied extensively on two decisions by the Appellate Division, Fourth Department -- Gardner v. Honda Motor Co., 536 N.Y.S. 2d at 303 and Panarites v. Williams, 629 N.Y.S. 2d at 359. In response, the Drattels pointed out that the Safety Act says "[c]ompliance with any Federal motor vehicle safety standard . . . does not exempt any person from any liability under common law," 15 U.S.C. § 1397(k); maintained that Gardner was rendered invalid by the U.S. Supreme Court's ruling in Cipollone; and contended that the Fourth Department's four-paragraph decision in Panarites was erroneous. On January 4, 1996, however, the trial court granted Toyota's motion, stating, "[T]he trial courts within this department must follow an Appellate Division precedent set in any department in this state until its own Appellate Division or the Court of Appeals decides otherwise. Thus, this Court is bound by the ruling in Panarites." R. 13 (citations deleted).
On appeal, the Appellate Division, Second Department, reversed. Drattel
v. Toyota Motor Corp., 231 A.2d 326 (2d Dept. 1997). R. 962. The Court started
its analysis by oberving that, under Medtronic, "preemption of State-law
causes of action should not be assumed but requires clear evidence that
such was Congress' intent." R. 963. Reviewing "the purpose of
the Safety Act, its language, and its legislative history," the Court
concluded that "Congress did not intend to preempt State common-law
claims." Id.
First, the Court noted that the Safety Act "was enacted to reduce traffic
accidents and the deaths and injuries from such accidents," citing
49 U.S.C. § 30101, which sets forth that goal as the Safety Act's sole
purpose. R. 963. The Court pointed out that the safety standards promulgated
under the Act are intended to serve that purpose by providing "minimum
standards for equipment performance." (R. 964, emphasis in original.)
The Court then rejected Toyota's express preemption argument. At the outset,
it found that the term "standard" in the Safety Act's express
preemption clause, 15 U.S.C. § 1392(d), was intended to refer to "specific
statutory or regulatory enactments" and not to common law claims. R.
964. It noted that "standard" was "more limited in scope"
than the word "requirement" used in other statutes and that Congress
certainly "could have explicitly included State common-law in the preemption
clause if that was its intent." Id. "In any event," the Court
held, "even if the preemption clause could be considered ambiguous,
when it is considered in conjunction with the statute's savings clause and
legislative history, it is clear that Congress did not intend to preempt
State common-law claims." Id.
Next, the Court held that, under Cipollone, Toyota's implied preemption
argument could not properly be reached because the Safety Act's express
preemption and savings clauses "establish[ed] Congress' intent to exclude
common-law claims from the statute's preemptive reach." R. 965. Finally,
the court held that, in any event, Toyota's implied preemption argument
failed both because it contravened Congress' plain intent and because "a
finding in the plaintiffs' favor that a driver's side airbag was a safer
design alternative would not conflict with Standard 208, which permits automobile
manufacturers to choose among passive restraint systems." Id.
Two justices dissented, in an opinion that failed to mention the presumption
against preemption. The dissent contested the Court's statement of the Safety
Act's purpose, argued that the term "standard" should be interpreted
more broadly, and maintained that plaintiffs' common law claims are both
expressly and impliedly preempted. It insisted that Congress' express preservation
of all common law claims could not mean what it said because that would
"render the practical effect of the preemption clause all but illusory."
R. 968. "To give practical effect to the preemption clause," the
dissent maintained, "it is necessary to read the savings clause as
meaning that ‘compliance with the federal standards does not protect
an auto manufacturer from liability . . . in connection with matters not
covered by the federal standards.'" R. 968, emphasis supplied. This
appeal followed.
INTRODUCTION AND SUMMARY OF ARGUMENT
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.
During the next twenty years, whenever the auto manufacturers were sued
for design defects after complying with applicable federal motor vehicle
safety standards, they consistently argued that they could not be held liable
for failing to do more than the federal standard required. Equally consistently,
the courts rejected that 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. § 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
("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, most courts were
accepting it -- at least until the U.S. Supreme Court's 1992 decision in
Cipollone.
The question of whether compliance with Federal motor vehicle safety standards
exempts automakers from common law liability is supposed to be decided in
a straightforward fashion. In determining whether common law claims are
preempted by federal law, a court's "sole task is to ascertain the
intent of Congress." California Federal Savings & Loan Association
v. Guerra, 107 S. Ct. 683, 689 (1987) ("California Federal").
The inquiry "starts with the basic assumption that Congress did not
intend to displace state law." Maryland v. Louisiana, 101 S. Ct. 2114,
2128 (1981). Congressional intent to preempt state law can be found in three
separate ways. California Federal, 107 S. Ct. at 689. First, there is express
preemption: Congress can explicitly state its intent to preempt the state
law at issue. Id. Second, if Congress's intent is not clear from its express
language, an intention to preempt can be implied when the legislation passed
is so comprehensive that it leaves no room for the states to supplement
federal law. Id. Third, if Congress's intent is not clear from its express
language, an intention to preempt a specific law can also be implied if
the state law "actually conflicts" with the federal law. Id. Such
an "actual conflict" will only be found where "compliance
with both federal and state [law] is a physical impossibility" or "the
state law stands as an obstacle to the accomplishment and execution of the
full purposes of Congress." Id. Throughout the preemption analysis,
"the purpose of Congress is the ultimate touchstone." Id.
Despite these clear rules, and the Safety Act's express preservation of
all common law claims, 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. § 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 at 816; 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. (1990). New York's Appellate Division, Fourth Department, reached a
similar conclusion in Gardner v. Honda Co., 536 N.Y.S. 2d at 303. What prompted
these decisions? The expansion of the implied preemption doctrine started
by the Third Circuit's since-rejected decision in Cipollone, 789 F.2d at
181, finding certain common law claims involving cigarettes preempted despite
Congress' intent to the contrary.
In 1992, however, the U.S. Supreme Court rejected the Third Circuit's analysis
in Cipollone and effectively overruled the implied preemption findings in
those "no-airbag" cases. 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 Court's 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 those principles in Myrick v. Freuhauf Corp., 13 F.3d at 1516,
the U.S. Court of Appeals for the Eleventh Circuit confirmed that Cipollone
effectively overruled the implied preemption decisions upon which Toyota
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.
Three years ago, the U.S. Supreme Court unanimously affirmed the Eleventh
Circuit's ruling in Myrick. In Freightliner Corp. v. Myrick, 115 S. Ct.
at 1483, 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.
Finally, less than two years ago, the U.S. Supreme Court issued another
decision addressing preemption of common law claims, Medtronic, Inc. v.
Lohr, 116 S. Ct. at 2240. Rejecting the near-unanimous view of the federal
and state appellate courts, the Supreme Court held that the Medical Device
Amendments of 1976, 21 U.S.C. § 360(k), 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 §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 nonetheless 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).
In the wake of Cipollone, Myrick, and Medtronic, appellate courts throughout
the nation are once again rejecting the auto manufacturers' attempt to nullify
the meaning of Congress' plain words. Thus, in 1995, the New Hampshire Supreme
Court unanimously held in Ford Motor Co. v. Tebbetts, 140 N.H. at 203, 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. Later the same year, in Wilson v. Pleasant and General Motors Corp.,
660 N.E.2d at 327, 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. Since that
time, the Supreme Court of Arizona has unanimously concurred in Munroe v.
Galati, 938 P.2d at 1114, and the Supreme Court of Ohio has reached the
same conclusion in Minton v. Honda of America Mfg., Inc., 684 N.E. 2d at
648. In Doyle v. Volkswagenwerk Aktiengelellschaft, 114 F.3d at 1134 (emphasis
in original), the Eleventh Circuit recently reaffirmed its holding in Myrick
"that standards promulgated under the National Traffic and Motor Vehicle
Safety Act do not preempt common law claims." And several other appellate
courts have held that auto manufacturers are not exempt from common law
liability for failing to install airbags or manual lap belts.
Despite Cipollone, Myrick, and Medtronic, 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). The Supreme Courts of Mississippi and Pennsylvania have found
"no-airbag" claims preempted. Cooper v. General Motors Corporation,
702 So. 2d 428 (Miss. 1997); Cellucci v. General Motors Corp., __ A.2d __,
1998 WL 1333 (Pa. Jan. 2, 1998). And, of course, in Panarites v. Williams,
629 N.Y.S. 2d at 359, the Appellate Division, Fourth Department, issued
a four-paragraph decision following its pre-Cipollone decision in Gardner
and finding preemption on numerous grounds.
In this case, the Appellate Division, Second Department recognized that
Cipollone, Myrick, and Medtronic eviscerated Gardner and Panarites –
neither of which mentioned the presumption against preemption or respected
Congress' plain words. Considering "the purpose of the Safety Act,
its language and its legislative history," the Court below concluded
"that Congress did not intend to preempt State common-law claims."
R. 963. That conclusion was correct and should be affirmed for four basic
reasons.
First, as the Supreme Court repeatedly emphasized in Cipollone, Myrick,
and Medtronic, in determining whether plaintiffs' common law claims are
preempted, a court's "sole task is to ascertain the intent of Congress."
California Federal 107 S. Ct. 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. § 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 plaintiffs' 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 Toyota manufactured the 1991
Tercel did not dictate any particular design, prevent Toyota from doing
more than the minimum required, or preclude Toyota from installing an airbag
in any car. That being so, it would in no way conflict with the federal
regulatory regime for plaintiffs to show that there was an alternative design
available that would have prevented Caryn Drattel's injuries -- a design
that included an airbag.
Fourth, even if this Court concludes that Congress actually intended the
Safety Act to preempt some common law claims, plaintiffs' claims in this
case are not preempted. Cipollone says that, if this Court reaches that
point, it then must ask whether the legal duty that is the predicate of
each of plaintiffs' claims falls within the scope of what the Safety Act's
preemption clause preempts -- giving that clause "a fair but narrow
reading." Cipollone, 112 S. Ct. at 2621. Under that test, none of plaintiffs'
claims are preempted. The legal duties on which they are based -- the general
duties not to act negligently, not to breach warranties, and not to manufacture
defective products -- do not constitute "safety standards" established
by "a State or political subdivision of the State" "with
respect to" an "aspect of performance" of any "motor
vehicle or item of motor vehicle equipment." Even if plaintiffs' negligence
and strict liability claims actually required Toyota to use a specific design
(which they do not), they still would not constitute the type of performance
standards preempted by the Safety Act. Similarly, plaintiffs' express and
implied warranty claims are not based on any duty to meet a specified level
of performance (or provide any specific design). Instead, they are based
on the fundamental duty not to break promises. For all of these reasons,
Congress did not intend to preempt plaintiffs' common law claims.
CONGRESS DID NOT INTEND TO PREEMPT PLAINTIFFS' CLAIMS
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 four reasons why plaintiffs' claims in this case are not preempted by the Safety Act. The first -- and the "touchstone" for all of the others -- is that Congress clearly and unequivocally preserved them.
A. PLAINTIFFS' CLAIMS ARE NOT EXPRESSLY PREEMPTED
BECAUSE CONGRESS EXPRESSLY PRESERVED THEM.
Congress enacted the Safety Act on September 9, 1966. As the Appellate
Division correctly observed, R. 963, 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. § 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. § 1391(2) (emphasis added). Newly manufactured vehicles
that did not comply with these minimum performance standards could not be
sold. 15 U.S.C. § 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.
1. 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. § 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 plaintiffs' 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. § 1392(e) ("[t]he
Secretary may by order amend or revoke any [f]ederal motor vehicle safety
standard . . . "); id. at § 1392(h) ("[t]he Secretary shall
issue initial [f]ederal motor vehicle safety standards. . . "); id.
at § 1392(i)(1)(A) ("the Secretary shall publish proposed [f]ederal
motor vehicle safety standards . . . "); id. at § 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 the one adopted by the Court
below -- 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. R. 964. Toyota criticizes
this reading, citing a dictionary's definition of "standard,"
see Toyota's Brief at 25, R. 966, but Congress used the term "safety
standard," not the single word "standard." Moreover, the
issue here is not what "safety standard" could mean, but, what
Congress intended it to mean in the Safety Act.
Second, as the Appellate Division also recognized, R. 964, 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 standard" 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."). Toyota asserts,
as the dissent did below, that a preemption clause does not always have
to mention common-law claims explicitly in order to preempt them, citing,
for example, Cipollone. That observation is accurate, but it misses the
mark. In some statutes, including the two at issue in Cipollone, Congress
may not mention the common law in either a preemption or an anti-preemption
clause. When that happens, the courts have no clear guidance. But in the
Safety Act, where the preemption clause does not mention common law claims,
but the savings clause explicitly refers to them, that difference is compelling
evidence that the preemption clause does not extend to common law claims.
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 Toyota'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. § 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.
Toyota and its amicus argue, however, that section 1392(d) must expressly
preempt common law claims because Cipollone and Medtronic establish a general
rule that statutory language preempting state "requirements" or
"standards" necessarily includes common law claims. Toyota's Brief
at 27-32, PLAC's Brief at 21-24. This is a stunning proposition. Both Cipollone
and Medtronic rebut it.
In Cipollone, there were two preemptive statutes at issue. The first, enacted
in 1965, provided that "[n]o statement relating to smoking and health
. . . shall be required" by the states. Cipollone, 112 S. Ct. at 2618.
The Court held that this language did not encompass common law claims. Id.
at 2618-19. The second, enacted in 1969, said: "No requirement or prohibition
based on smoking or health shall be imposed under State law with respect
to the advertising or promotion of any cigarettes . . ." Id. at 2617.
The Court held that, particularly in light of Congress' reasons for expanding
the scope of the preemption language between 1965 and 1969, this language
preempted some, but only a limited set of, common law claims. Id. at 2619-24.
In Medtronic, 116 S. Ct. at 2251-53, Justice Stevens, who authored the Cipollone
decision, firmly rejected -- and discussed at great length -- the defendant's
argument that the Medical Device Amendments' express preemption provision
necessarily preempted state common law claims simply because it preempted
state law requirements. The provision, 21 U.S.C. § 360k(a), says that
"no State or political subdivision of a State may establish or continue
in effect with respect to a device. . . any requirement (1) which is different
from, or in addition to, any requirement applicable under this chapter to
the device, and (2) which relates to the safety or effectiveness of the
device. . ." Justice Stevens explained that these words did not encompass
plaintiffs' common law claims. Medtronic, 116 S. Ct. at 2240. Citing the
limited nature of the Cipollone preemption finding, the numerous differences
between the 1969 cigarette litigation and the 1976 Medical Device Amendments,
and the legislative purpose and history of the latter statute, Justice Stevens
said "Medtronic's argument is not only unpersuasive, it is implausible."
Medtronic, 116 S. Ct. at 2251.
Nevertheless, Toyota insists that section 1392(d) expressly preempts plaintiffs'
common law claims because it preempts all state law "standards"
that are not "identical" to federal standards. Toyota's Brief
at 25. This argument ignores the provision's words -- which only preempt
a limited set of "safety standard[s]" applicable to the same "aspect
of performance" as a Federal motor vehicle safety standard -- and proves
too much. Indeed, that is the central flaw in Toyota's reliance on the Safety
Act's express preemption clause. Federal Motor Vehicle Safety Standards
are currently in effect for virtually all aspects of performance of motor
vehicles and their equipment. If section 1392(d) preempts all state law
"standards" that are not "identical" to federal standards,
and if common law claims really do establish such standards, then virtually
all common law claims are preempted, including those routinely allowed by
the courts for the past thirty years, since very few are based on standards
"identical" to the federal standard. As a result, virtually all
design defect victims would be left without a remedy.
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 §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
§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, Toyota'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. § 1381. Toyota's interpretation is as untenable as the defendant's in Medtronic.
Perhaps for that reason, Toyota's amicus advances a more narrow interpretation
of the Safety Act's express preemption clause. It argues that section 1392(d)
only expressly preempts common law tort claims that are "inconsistent"
with federal safety standards. PLAC's Brief at 14 (emphasis added). But
this argument also ignores the section's words -- which do not refer to
common law tort claims at all and preempt all state safety standards that
are not "identical" to federal standards. As Toyota itself notes,
"The choice of the word ‘identical' rather than the word ‘inconsistent'
manifests an apparent intent to preempt all state regulations which do not
mirror the precise requirements of federal regulation[s]. . . ." Toyota's
Brief at 25 (citation omitted, emphasis added). Neither Toyota nor its amicus,
furthermore, concede what this quote correctly recognizes -- that section
1392(d) is addressed to regulations (and statutory requirements akin to
regulations) -- not to common law claims. It is section 1397(k) that is
addressed to common law claims. The Safety Act's express preemption provision
simply does not apply to them.
2. The Safety Act's Express Anti-Preemption Clause.
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 liability under common law." 15 U.S.C. § 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). As the Supreme Court of Arizona said in Munroe,
938 P.2d 1114, 1119, "It is difficult to imagine just what language
Congress could have used to make the point more clear."
Perhaps for that reason, Toyota does not even attempt to address the meaning
of these plain words until page 52 of its 60-page brief. And then, Toyota
and its amicus struggle mightily to argue they do not mean what they say.
First, Toyota and its amicus assert that, as a rule, "general savings
clauses" do not preserve common law claims that conflict with federal
law and, instead, simply reflect Congress' intent to preclude a finding
of implied field preemption. Toyota's Brief at 52-55; PLAC's Brief at 25-29.
Whether or not that is true of "general savings clauses" (whatever
they are) it plainly is not true of section 1397(k). As we have noted, and
discuss in more detail below, section 1397(k) was adopted by Congress in
direct response to Tom Triplett's testimony for an extremely specific purpose:
to unequivocally preserve all common law claims. Equally important, the
argument that Section 1397(k) only negates implied field preemption cannot
be squared with its language. Nor can it be squared with the language of
section 1392(d), the Safety Act's preemption provision. By its terms, the
preemption provision only applies 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 simply cannot be read
to preempt any broader "field" than that covered by federal regulations.
Accordingly, there would be no reason for the savings clause to address,
and affirmatively negate, the prospect of such broader field preemption.
Second, Toyota and its amicus argue -- in direct contradiction to their
first argument -- that section 1397(k) is not really a savings clause at
all. Section 1397(k), they say, is not addressed to federal preemption;
it is addressed to whether compliance with federal standards is a defense
on the merits under state law. Toyota's Brief at 56; PLAC's Brief at 26.
This reading of the savings clause makes no sense, particularly in light
of the interpretation of the preemption provision that Toyota advances.
According to Toyota, any common law claim that relates to the same aspect
of performance as a federal motor vehicle safety standard is expressly preempted
by the preemption provision. If that is so, why would Congress need to negate
the affirmative state law defense of compliance with government standards
with respect to those claims? They would already be extinguished by virtue
of preemption. In other words, under Toyota's reading of the preemption
provision, the savings clause could only apply in cases where it would necessarily
have no legal effect. Toyota would essentially render the section's plain
language and purpose nugatory.
Third, Toyota and its amicus argue that a federal statute "cannot be
read to destroy itself." Toyota's Brief at 54; PLAC's Brief at 27.
We agree. As the California Court of Appeal recently said in Ketchum v.
Hyundai Motor Company, 49 Cal. App. 4th at 1680: "Congress clearly
distinguished between motor vehicle safety standards, which are preempted,
and common law standards of liability, which are not. This language unambiguously
expresses the intent of Congress to preserve common law liability actions."
Accord, Ford Motor Company v. Tebbetts, 165 A.2d at 345; Wilson v. Pleasant,
660 N.E. 2d at 327; Munroe, 938 P.2d at 1114; Minton, 684 N.E. 2d at 648.
It is Toyota and its amicus who are arguing that the Safety Act must be
read to destroy itself. They are trying to negate the crystal-clear language
of section 1397(k).
At least the dissent below did not try to hide that fact. In its view, reading
the savings clause as it is written would "render the practical effect
of the preemption clause all but illusory." R. 968. For that reason,
the dissent asserted that "it is necessary to read the savings clause
as meaning ‘that compliance with the federal standards does not protect
an automobile manufacturer from liability . . . in connection with matters
not covered by the federal standards." Id., emphasis supplied. This
approach, however, is particularly flawed. To begin with, reading the savings
clause to mean what it says does not deprive the preemption clause of "practical
effect." To the contrary, it gives the preemption clause precisely
the effect that Congress intended -- preempting non-identical state regulatory
and administrative safety standards akin to federal safety standards. Equally
important, reading the savings clause to preserve common law liability only
in connection with matters not covered by federal standards both contravenes
the clause's words and robs them of their intent. By its terms, the savings
clause only comes into play when the auto manufacturer has complied with
an applicable safety standard. And the Supreme Court held in Myrick -- without
reference to the savings clause -- that, when there is no applicable safety
standard, the Safety Act does not preempt common law claims. Under the dissent's
approach, therefore, it is the savings clause that would have no "practical
effect" -- it would only preserve common law claims that would not
be preempted anyway. Finally, of course, under our Constitutional system
of government, no court -- however well intentioned -- preferred result.
See Brogan v. United States, 66 U.S.L.W. 4111, 4114 (Jan. 27, 1998) ("Courts
may not create their own limits on legislation, no matter how alluring the
arguments for doing so.") In the Safety Act, Congress wrote the savings
clause with one result in mind: to make crystal clear that no common law
claims are preempted. The Safety Act's legislative history confirms and
underscores this simple truth.
3. The Safety Act's Legislative History.
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, as the Appellate Division found, if one looks to the Safety Act's legislative history, it only confirms that Congress intended to preserve all common law claims.
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 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.
House Hearings at 1249.
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.
c. 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.
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. § 1397(k).
Despite that fact, we briefly review Standard 208's long and convoluted
history here for two reasons. First, 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 1991 Toyota Tercel 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.
Second, while Cipollone, Myrick, and Medtronic plainly undercut the Fourth
Department's implied preemption reasoning in Gardner, the Gardner decision
was based, in part, on a misperception of Standard 208's history. Many of
the facts below are not reflected in Gardner.
* * * * * *
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. Comparing the two, she said, "Although
airbags may provide greater safety benefits, when used with belts, and potentially
larger injury premium reductions than automatic belts, they are unlikely
to be as cost effective." 49 Fed. Reg. 29001 (1984); R. 496. The Secretary
also said that, if she did require airbags only, "The manufacturers
also would not be able to develop better automatic belt systems that may
be more acceptable and, therefore, used by larger numbers of people. This
may result in automatic belts that save as many lives but at a much lower
cost than airbags." Id.
From the data analyzed, Secretary Dole concluded that the safest system
was precisely the one that the plaintiffs 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 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).
By the time the 1991 Toyota Tercel in this case was manufactured, Standard
208 required, at a minimum, some form of passive restraint in all 1991 model-year
cars. 49 C.F.R. § 571.208. It did not prohibit Toyota, 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. § 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. As the Appellate Division
held, the latter is what the Safety Act clearly requires.
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, Toyota insists (and the Fourth Department reasoned in Gardner) 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, 108 S. Ct. 1704, 1712 (1988) (footnote omitted):
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.,
104 S. Ct. at 625-26 (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).
See also English v. General Elec. Co., 110 S. Ct. 2270, 2278 (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 plaintiffs' 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,
104 S. Ct. at 625-26.
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. As the Supreme Court of Arizona
said in Munroe, 938 P.2d at 1114, 1120: "Common-law liability does
not impose mandatory requirements that manufacturers must follow; such exposure
to possible liability, rather, allows manufacturers to make choices about
costs . . . Manufacturers may weigh the risks and benefits and choose to
risk the occasional lawsuit rather than to change their behavior."
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 Toyota
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 recently, 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 concluded
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. Once this Court
accepts that conclusion, the analysis of the preemption issue ends. For,
as Cipollone, Myrick, and Medtronic make plain, and the Appellate Division
held, Congress' unequivocal words preclude consideration of Toyota's implied
preemption arguments.
B. THE QUESTION OF IMPLIED PREEMPTION CANNOT
BE REACHED BECAUSE CONGRESS CLEARLY AND
EXPRESSLY PRESERVED ALL COMMON LAW CLAIMS.
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 at 181; Palmer v. Liggett Group, Inc., 825 F.2d 620 (1st Cir. 1987)
(cited twice in Gardner, 536 N.Y.S. at 306). The Supreme Court, however,
insisted that the only question properly considered was whether the statutes'
preemption provisions expressly preempted plaintiffs' 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, 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 §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 nonetheless 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: Toyota's implied preemption
arguments cannot be considered. 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 § 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 § 1397(k) pre-emption clause entirely forecloses any possibility
of implied pre-emption in this case.
Accord, Minton, 80 Ohio St. 3d at 75-76; Munroe, 938 P.2d at 1117-18.
Toyota nevertheless contends that there are three reasons why implied preemption can be considered here. First, it says that the Safety Act's express preemption provision is not a "reliable indicium of Congressional intent." See Toyota's Brief at 44. This argument, however, only gets Toyota halfway to its goal. While the Safety Act's express preemption provision, standing alone, may not be a reliable indicium of Congressional intent with respect to the preemption issue in this case, the preemption provision does not stand alone. The Safety Act's savings clause stands with it. And that clause provides a reliable -- indeed, a conclusive -- indicium of Congressional intent to preserve all common law claims.
Second, Toyota contends that the Supreme Court did not reach implied preemption
in Cipollone, but this Court should here, because the statutes in Cipollone
contained no savings clause, but the Safety Act does. Toyota's Brief at
45. This is a truly bizarre contention. In Cipollone, the two statutes at
issue said nothing specific about whether compliance with federal law exempts
cigarette manufacturers from liability at common law. Nevertheless, the
Supreme Court decided the answer to that question by looking solely at the
statutes' express preemption provisions and held that, because those provisions
were a "reliable indicium of congressional intent," any resort
to implied preemption would be improper. Cipollone, 112 S. Ct. at 2618.
It issued this ruling, moreover, even though the members of the Court disagreed
vehemently about the meaning of the express preemption provisions in both
statutes. The Safety Act, in contrast, contains an express anti-preemption
clause that specifically addresses whether compliance with federal law exempts
auto manufacturers from liability under state common law. To say that the
presence of such a specific clause permits resort to implied preemption
is to turn preemption analysis on its head! It is the purpose of Congress
that is "the ultimate touchstone in every pre-emption case." Medtronic,
116 S. Ct. at 2251.
Third, Toyota correctly notes that, in Guice v. Charles Schwab & Co.,
Inc., 89 N.Y.2d 31, 50 (N.Y. 1996), this Court found that the presence of
an express preemption clause in a statute does not entirely foreclose any
possibility of implied preemption. Toyota's Brief at 43. We agree. That
is precisely what the U.S. Supreme Court said in Myrick, 115 S. Ct. at 1483.
In each instance, the test is whether Congress' words provide a "reliable
indicium of congressional intent." Cipollone, 112 S. Ct. at 2618; Myrick,
115 S. Ct. at 1488. Here, they do. That is why Toyota's implied preemption
arguments cannot properly be considered.
Accordingly, there is no basis for considering any of the implied preemption
arguments advanced by Toyota. The express preemption inquiry is the beginning
and the end of the analysis.
C. EVEN ASSUMING THAT IMPLIED PREEMPTION ANALYSIS IS PROPER UNDER THE SAFETY ACT, PLAINTIFFS' CLAIMS ARE NOT IMPLIEDLY PREEMPTED BECAUSE THEY DO NOT CONFLICT WITH THE SAFETY ACT OR NHTSA'S REGULATIONS.
Even assuming, however, that implied preemption analysis is proper in this case, there is no preemption here since plaintiffs' claims do not conflict with the Safety Act or NHTSA's regulations. Toyota's implied preemption argument is based on the assertion that the introduction of evidence showing that Caryn Drattel's 1991 Toyota Tercel would have been safer if it had contained an airbag (in addition to a 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.
Before explaining why this is so, there are three larger points to be made,
about the nature of implied conflict preemption. To begin with, it is important
to note that the strong presumption against preemption of state law applies
with just as much force to implied preemption as it does to express preemption.
See footnote 1 supra. This makes sense, since preemption requires a "clear
and manifest purpose of Congress," Medtronic, 116 S. Ct. at 2250, and
implied preemption analysis takes place in the absence of an explicit statement
by Congress.
For similar reasons, implied preemption analysis, like express preemption,
focuses solely on Congress' intent. Disregarding that fact, Toyota contends
that state laws that conflict with federal laws are preempted "by direct
operation of the Supremacy Clause" regardless of Congress' intent.
Toyota's Brief at 33. This contention is simply wrong. By its terms, the
Supremacy Clause provides that the "Constitution" and "the
Laws of the United States which shall be made in Pursuance thereof"
are "the supreme Law of the Land." U.S. Const., Art. VI, cl. 2.
If a "Law [ ] of the United States" expresses a congressional
intent not to preempt certain state laws that a court might otherwise deem
to be in conflict with the federal statute, that express congressional intent
is part of "the supreme law of the Land," and it must be respected
as much as other provisions of the statute. Toyota cannot avoid the simple
truth that whether state laws are "invalid under the Supremacy Clause
depends on the intent of Congress." Malone v. White Motor Co., 435
U.S. 497, 504 (1978).
Finally, in order for conflict preemption to exist, there must be an actual
conflict. "The teaching of this Court's decisions enjoins seeking out
conflicts between state and federal regulation where none clearly exists."
English v. General Elec. Co., 110 S. Ct. at 2280 (brackets and ellipses
deleted). Here, Toyota and its amicus ask this Court to seek out conflicts
where none clearly exists. The various reasons why Toyota and its amicus
claim a conflict exists are briefly summarized and rebutted below.
First, Toyota argues that introduction of evidence involving airbags is
impliedly preempted because a finding of liability based -- even in part
-- on Toyota's failure to install airbags would deprive Toyota of its federally
mandated "option" to choose among the design choices set forth
in Standard 208 and thereby destroy the "flexibility" that Standard
208 affords. Toyota's Brief at 35-39. This argument fails on several grounds.
To begin with, even if plaintiffs did contend that Toyota 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. Equally important, plaintiffs do not
contend that Toyota should have chosen a different "option" under
Standard 208. Rather, they maintain that Toyota should have done more than
the bare minimum required by the "option" it chose. Toyota was
plainly free to install an airbag -- in addition to a manual lap belt and
an automatic shoulder harness -- in the 1991 Toyota Tercel. The only "flexibility"
that plaintiffs seek to deny Toyota is a "flexibility" that Congress
and Standard 208 never purported to give it -- the "flexibility"
to avoid liability for its actions at common law.
Second, Toyota argues that permitting plaintiffs' claims to proceed would
destroy the uniformity the Safety Act is supposedly meant to achieve. Toyota's
Brief at 39-41. The Safety Act, however, has no such stated goal. "In
fact, the text of the statute does not use the word ‘uniformity'."
Munroe, 938 P.2d at 1118. "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. § 1381."
Chrysler Corp. v. Tofany, 419 F.2d 499, 508 (2d Cir. 1969). Moreover, Toyota's
assertion that uniformity is essential directly conflicts with its contention
that Toyota 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."
Third, Toyota argues that Congress impliedly preempted plaintiffs' claims
by adopting 15 U.S.C. § 1410b(b)-(d). Toyota's Brief at 45-46. This
provision, enacted in 1974, says that Federal motor vehicle safety standards
requiring airbags cannot be issued unless they are submitted for a legislative
veto. The Fourth Department also erroneously relied on this provision in
Gardner, 536 N.Y.S. 2d at 305-06. The reliance was 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. § 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 –
fourteen years before the car at issue in this case was manufactured --
when the Senate Committee with jurisdiction over NHTSA affirmatively endorsed
such a standard. See footnote 12, supra; Motor Vehicle Manufacturers Association,
103 S. Ct. at 2864 n.7.
Fourth, Toyota argues that Congress affirmatively endorsed the court decisions
finding "no-airbag" claims impliedly preempted when it adopted
the Intermodal Surface Transportation Efficiency Act of 1991, Pub.L.No.
102-240, 105 Stat. 1914 (1991). Toyota's Brief at 46-47. 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).
Fifth, Toyota argues that NHTSA supports Toyota's implied preemption position
in this case. See Toyota's Brief at 47-50. That is not so. In the very brief
cited by Toyota, 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; R. 633. 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. As Toyota recognizes, see Toyota's
Brief at 6 and 50, in both of these briefs, the Solicitor General contended
only that there is implied preemption of "common law tort actions that
impose liability for failure to install airbags (as opposed to other types
of passive restraint devices)." Id. at 28 (emphasis added). Those briefs,
filed before Medtronic, do not support preemption in this case. Plaintiffs
in this case do not claim that Toyota should have installed an airbag as
opposed to other types of passive restraints.
Finally, Toyota argues that allowing plaintiffs to introduce evidence about
airbags to meet their evidentiary burden under New York law would "circumvent
preemption" and "nullify preemption in every case." Toyota's
Brief at 50-52. The introduction of evidence about airbags would not "circumvent
preemption" because, as we have shown, Congress did not intend to preempt
plaintiffs' claims. Moreover, permitting the introduction of evidence about
airbags in cases like this one -- where plaintiffs allege that the car's
design was defective in numerous respects, but are required by state law
to introduce evidence of alternative designs that would have made the car
reasonably safe or mitigated the plaintiffs' injuries -- would not automatically
permit the introduction of such evidence in every case. If federal law preempts
cases claiming that cars are defectively designed solely because they lack
airbags, then plaintiffs could not "nullify preemption" in those
cases by seeking to introduce evidence about airbags. The sole basis for
liability would be preempted. In this case, however, Toyota is arguing that
Congress intended both to immunize it for failing to install airbags and
(at least in states like New York which require proof of alternative design)
to immunize it for numerous other design defects, too. As Judge Korman held
in Murphy v. Nissan Motor Corp. in U.S.A., 650 F. Supp. 923, 928 (E.D.N.Y.
1987), a decade ago:
Plaintiff does not allege that defendant is liable because it failed to
equip its automobile with airbags but simply alleges that equipping the
automobile with airbags was a feasible design alternative that would have
alleviated the danger of the design actually used by defendant. At oral
argument defendant conceded that New York could impose strict liability
for defendant's allegedly defective seat design without regard to the feasibility
of alternative safer designs. The fact that New York products liability
law imposes the additional burden on plaintiff of demonstrating the availability
of safer design alternatives does not bring New York law into conflict with
the policies underlying standard 208 [or] the Act . . . merely because one
of the allegedly safer design alternatives is the subject of a federal motor
vehicle safety standard.
In sum, even if the issue of implied preemption is reached, it cannot be said that plaintiffs' 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 plaintiffs' claims frustrate the purposes of the federal regulatory program. Plaintiffs claims are not expressly or impliedly preempted.
D. SPECIFIC ANALYSIS OF PLAINTIFFS' CLAIMS
DEMONSTRATES THAT THEY ARE NOT PREEMPTED.
Finally, if this Court somehow concludes that Congress did intend the Safety Act to preempt some common law claims, that still does not mean that there is preemption in this case. As the Supreme Court said in Cipollone, 112 S. Ct. at 2621, this Court must then:
Fairly but - in light of the strong presumption against preemption - narrowly
construe the precise language of [the express preemption provisions and]
look to each of petitioner's common law claims to determine whether it is
in fact preempted. The central inquiry in each case is straightforward:
we ask whether the legal duty that is the predicate of the common law damages
action constitutes [what the Act's preemption clause preempts, i.e., in
Cipollone,] a "requirement or prohibition based on smoking and health
. . . imposed under State law with respect to . . . advertising or promotion,"
giving that clause a fair but narrow reading.
Accord, Medtronic, 116 S. Ct. at 2253-58 (reviewing specific claims). Under
this test, it is impossible to find any of the plaintiffs' claims preempted.
To begin with, the legal duties that plaintiffs charge Toyota with violating
-- the general duties not to act negligently, not to breach warranties,
and not to manufacture defective products -- do not constitute "safety
standards" established by "a State or political subdivision of
a State" "with respect to" an "aspect of performance"
of any "motor vehicle or item of motor vehicle equipment" -- particularly
if one gives those terms a "fair but narrow reading." Cipollone,
112 S. Ct. at 2621. The duties underlying the specific claims in this case
are common law duties of general applicability. Even if plaintiffs' win
a verdict in this case, that verdict will not establish any specific "state
standard" with respect to any "aspect of performance" of
Caryn Drattel's 1991 Toyota Tercel, much less any other car.
This is particularly true of the plaintiffs' negligence and strict liability
claims, which focus on the design of the 1991 Toyota Tercel. Standard 208,
like the other safety standards, establishes performance requirements; it
does not mandate any specific design. Thus, even if plaintiffs' negligence
and strict liability claims actually required Toyota to use a specific design
(which they do not), they still would not constitute preempted state performance
standards.
Plaintiffs' claims for breach of express and implied warranty are not preempted
for an equally compelling reason: they are not based on any duty to meet
a specified level of performance or provide any specific design. Instead,
they are based on the fundamental duty not to break promises. See Cipollone,
112 S. Ct. at 2622 ("a common law remedy for a contractual commitment
voluntarily undertaken should not be regarded as a 'requirement imposed
under state law'"). Thus, even if this Court finds that Congress intended
the Safety Act to preempt some common law claims, the outcome in this case
is the same. Plaintiffs' common law claims are not preempted.
For all of the reasons set forth above, this Court should affirm the
decision below and remand this case for trial. The Safety Act means what
it says: common law claims are not preempted.
Respectfully submitted,
Harry H. Lipsig & Partners, P.C.
Attorneys for Plaintiffs-Respondents
40 Fulton Street
New York, New York 10038
(212)285-3300
By: Arthur H. Bryant
Appellate Counsel
Trial Lawyers For Public Justice
1717 Massachusetts Avenue, NW, Suite 800
Washington, D.C. 20036
(202)797-8600
Arthur H. Bryant
Alan M. Shapey
Brian I. Isaac
Of Counsel
Date: February 9, 1998