Robert M.N. Palmer
William Petrus
The Law Offices of Robert M.N. Palmer, P.C.
205 Park Central East, Suite 511
Springfield, MO 65801
James W. Taglieri
Cadeaux & Taglieri, P.C.
1100 Connecticut Avenue, NW, Suite 800
Washington, D.C. 20036
Arthur Bryant
Trial Lawyers for Public Justice
1717 Massachusetts Ave., N.W., Suite 800
Washington, D.C. 20036
Dated July 7, 1998
CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES
COME NOW Appellants, by and through their attorneys of record, and submit
the following Certificate as to Parties, Rulings, and Related Cases as provided
in Circuit Rule 28(a)(1).
(A) Parties and Amici
Alexis Geier
William Geier
Claire Geier
American Honda Motor Company, Inc.
Honda of America Manufacturing, Inc.
Honda Motor Company, Ltd.
(B) Rulings under Review
This is an appeal of the Order entered December 10, 1997 by the Honorable
William B. Bryant, Senior United States District Judge, in Geier v. American
Honda Motor Co., Inc., CA No. 95-00064 (WBB), in which Judge Bryant
sustained defendants' motion for summary judgment as to all claims on the
grounds that said claims were preempted by federal law, namely the National
Traffic and Motor Vehicle Safety Act, 49 U.S.C. § 30101 et seq. Counsel
for Appellants is not aware of any publication of said Order or the official
citation thereto.
(C) Related Cases
This case has not been before this Court or any other court. There are,
therefore, no related cases.
QUESTION PRESENTED
Did the District Court err in finding Congress intended Honda's compliance with Federal Motor Vehicle Safety Standard 208 to exempt Honda from liability under common law, even though the National Traffic and Motor Vehicle Safety Act of 1966 explicitly provides that "[c]ompliance with any Federal motor vehicle safety standard . . . does not exempt any person from any liability under common law?"
STATEMENT OF THE CASE
On January 16, 1992, Alexis Geier was operating her friend's 1987 Honda
Accord on MacArthur Boulevard in the District of Columbia. Ms. Geier was
wearing the three-point belt -- i.e., manual lap belt and shoulder harness
-- provided for the driver in the design of the car. Rounding a curve in
the 4900 block of MacArthur Boulevard, she lost control of the vehicle,
and it left the roadway and collided with a tree. Despite the fact that
she was wearing the available seat belt and shoulder harness, Ms. Geier
sustained grievous and serious head injuries. On January 12, 1995, Ms. Geier
and her parents filed this lawsuit seeking damages under the common law
of the District of Columbia against American Honda Motor Company, Inc.,
Honda of America Manufacturing, Inc., and Honda Motor Company, Ltd. (collectively,
"Honda") on theories of negligence, breach of warranty and strict
product liability. The Geiers allege that the 1987 Honda Accord driven by
Alexis was negligently and defectively designed. They intend to prove that
if the car had contained a driver's-side airbag in addition to the manual
lap belt and shoulder harness Alexis would not have been seriously injured
in the crash.
When the 1987 Honda Accord 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. ("the Safety
Act") -- specifically, Federal Motor Vehicle Safety Standard 208 --
did not prohibit Honda from installing airbags in the Accord or any other
car. 49 C.F.R. § 571.208. Standard 208 did, however, require Honda,
at a minimum, to install some form of passive restraint in a specified percentage
of its 1987 model-year cars and to install at least a manual three-point
lap belt and shoulder harness in the remaining percentage. Id. It also allowed
all manufacturers to do more than the bare minimum required (including install
both an airbag and a manual three-point lap belt and shoulder harness in
all cars) and relied on the threat of "potential liability for any
defective system," 49 Fed. Reg. 29,000 (1984), to prompt manufacturers
to choose the safest designs.
Despite the foregoing, on October 26, 1995, Honda moved for summary judgment
on the ground that the Geiers' claims were preempted by the Safety Act and
because the 1987 Honda Accord complied with Standard 208. In response, plaintiffs
pointed out that the Safety Act explicitly provides that "[c]ompliance
with any Federal motor vehicle standard ... does not exempt any person from
any liability under common law." 15 U.S.C. § 1397(k).
On December 10, 1997, however, the District Court found that the Safety
Act should be read to say, "compliance with Federal standards does
not exempt anyone from liability that the States have authority to impose,"
and held that plaintiffs' claims are expressly preempted. Memorandum Opinion
at 3, Appendix at 9. This appeal followed.
INTRODUCTION AND SUMMARY OF ARGUMENT
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 preemption."
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's intent -- by carefully
reviewing Congress's words and its reasons for adopting them. It said, "[T]he
purpose of Congress is the ultimate touchstone in every preemption case."
Id.
Remarkably, the decision below contravenes both of these teachings. First,
the District Court's decision does not even mention -- much less respect
-- the presumption against preemption. As a result, it fails to give proper
weight to "both federalism concerns and the historic primacy of state
regulation of matters of health and safety." Medtronic, 116
S.Ct. at 2250.
Second, while the sole question presented by this appeal is whether Congress
intended Honda's compliance with Standard 208 to exempt Honda from common
law liability -- and Congress expressly addressed and unequivocally answered
that question -- the decision below blatantly contradicts both Congress's
words and its reasons for adopting them. As a result, the District Court's
decision is wholly contrary to what Congress intended when it enacted the
Safety Act -- a response to events prompted, in part, by the publication
of a book, nearly thirty-five years ago.
In 1965, 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, the auto manufacturers consistently argued
that when they had complied with an applicable Federal motor vehicle safety
standard they could not be held liable for failing to do more. Equally consistently,
the courts rejected this argument. Eight federal appeals courts and five
state courts of last resort addressed the issue of whether compliance with
federal motor vehicle safety standards exempts auto manufacturers from liability
in design defect cases. Each reached the same conclusion: Congress's 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") ("[T]he
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. More surprisingly, however, at least
until the U.S. Supreme Court's decision in Cipollone, many courts
were accepting it.
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 816 (11th Cir.
1989), cert. den., 110 S.Ct. 1781 (1990); 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).
In Cipollone, however, the U.S. Supreme Court effectively overruled
the implied preemption findings in those decisions. Reaffirming that preemption
analysis "starts with the assumption that the historic police powers
of the States are not to be superseded . . . unless that is the clear and
manifest purpose of Congress," 112 S.Ct. at 2617 (emphasis added, brackets
deleted), the seven-member majority clarified the rules for courts considering
preemption arguments in two respects. First, it held that "[w]hen Congress
has considered the issue of preemption and has included in the enacted legislation
a provision explicitly addressing that issue, and when the provision provides
a reliable indicium of Congressional intent . . . , there is no need to
infer congressional intent to preempt state laws from the substantive provisions
of the legislation." Id. at 2618 (emphasis added). Second, it ruled
that, in determining whether Congress's words expressly preempt state law,
the courts must construe those words narrowly in light of the strong presumption
against preemption. Id. at 2617-18. As Justice Scalia described the ruling
in his dissenting opinion, at 2632, "express preemption provisions
must be given the narrowest possible construction."
Applying these principles in Myrick v. Freuhauf Corp., 13 F.3d 1516
(11th Cir. 1994), aff'd sub nom. Freightliner Corp. v. Myrick, 115
S.Ct. 1483 (1995), the U.S. Court of Appeals for the Eleventh Circuit confirmed
that Cipollone effectively overruled the implied preemption decisions
upon which Honda primarily relied below. 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. 1483 (1995) ("Myrick"), the Court held that the Safety
Act does not preempt common law claims based on truck manufacturers' failure
to install anti-lock braking systems ("ABS"). The Court found
it unnecessary to decide whether the Safety Act's express preemption provision
applies to common law claims (and whether the Act's express anti-preemption
clause preserves such claims) because, it concluded, the preemption provision
has no effect when no Federal safety standard is in place. Id. at 1487.
In so doing, the Court again made clear that express preemption provisions
are to be narrowly construed. Id. It also explicitly reaffirmed Cipollone's
holding that the presence of an express preemption provision in a statute,
without more, creates "an inference" that there is no implied
preemption. Id. at 1488. (There is, of course, more in the Safety Act; there
is an express anti-preemption provision preserving all common law liability.)
Finally, in Myrick, the Supreme Court noted that the truck manufacturers'
argument was "ultimately futile" because there was no conflict
between plaintiffs' common law claims and federal law. It noted: "Standard
121 imposes no requirements either requiring or prohibiting ABS . . . ,
Standard 121 currently has nothing to say concerning ABS devices one way
or the other, and NHTSA has not ordered truck manufacturers to refrain from
using ABS devices." Id.
Finally, two years ago, the U.S. Supreme Court issued another decision addressing
preemption of common law claims, Medtronic, Inc. v. Lohr, 116 S.
Ct. 2240 (1996) ("Medtronic"). Rejecting the near-unanimous view
of the federal and state appellate courts, the Supreme Court held that the
Medical Device Amendments of 1976, 90 Stat. 539, did not preempt any of
the plaintiffs' common law claims. In so doing, the Court again made clear
that, where Congress has addressed the issue of preemption, the courts should
focus on express preemption only. It said:
As in Cipollone v. Liggett Group, Inc., we are presented with the
task of interpreting a statutory provision that expressly preempts state
law. While the preemptive language of §360k(a) means that we need not
go beyond that language to determine whether Congress intended the MDA to
preempt at least some state law, we must nonetheless identify the domain
expressly preempted 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 preemption 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 preemption.
First, because the States are independent sovereigns in our federal system, we have long presumed that Congress does not cavalierly preempt state-law causes of action. In all preemption 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 preemption case. As a result, any understanding of the scope of a preemption statute must rest primarily on a fair understanding of congressional purpose. Congress' intent, of course, primarily is discerned from the language of the preemption 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'
attempts to nullify the meaning of Congress's plain words. Thus, in 1995,
the New Hampshire Supreme Court unanimously held in Ford Motor Co. v.
Tebbetts, 165 A.2d 345, 140 N.H. 203 (N.H. 1995), that the Safety Act
expressly preserves all common law claims, that Congress's 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
327 (Ind. 1995), the Supreme Court of Indiana agreed in all respects --
and held that, even if implied preemption could be reached, there is no
conflict between a "no-airbag" claim and Standard 208. Since that
time, the Supreme Court of Arizona, the Supreme Court of Ohio, the Supreme
Court of Texas, and the New York Court of Appeals have all concurred. Munroe
v. Galati, 938 P.2d 1114 (Ariz. 1997); Minton v. Honda of America
Mfg., Inc., 684 N.E.2d 648 (Ohio 1997); Hyundai Motor Co. v. Alvarado,
(Sup. Ct. of Texas, No. 95-0969, June 5, 1998); Drattel v. Toyota Motor
Corp., (N.Y. Ct. App. No. 65, June 16, 1998). 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 Co., 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 Corp., 702 So.2d 428 (Miss. 1997); Celluci v. General
Motors Corp., 706 A.2d 806 (Pa. 1998). And the Ninth Circuit has issued
an aberrant decision finding express preemption of "no-airbag"
claims. Harris v. Ford Motor Co., 110 F.3d 1410 (9th Cir. 1997).
In this case, the lower court found express preemption, relying primarily
on the Ninth Circuit's decision in Harris. That finding was erroneous. For
three basis reasons, plaintiffs' common law claims are not preempted.
First, as the Supreme Court reaffirmed in Medtronic, in determining
whether plaintiffs' common law claims are preempted, a court's "sole
task is to ascertain the intent of Congress." California Federal at
280. Here, that task is exceedingly easy to perform: Congress explicitly
and unequivocally preserved all common law claims by enacting 15 U.S.C.
§ 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 Honda manufactured the 1987 Accord
did not dictate any particular design, prevent Honda from doing more than
the minimum required, or preclude Honda from installing an airbag in any
car. Indeed, in adopting it, the federal government explicitly stated that
it would rely on "the threat of liability" to encourage manufacturers
to use the safest designs. That being so, it in no way conflicts with the
federal regulatory regime for plaintiffs to show that there was an alternative
design available that would have prevented Alexis Geier's injuries -- a
design that included an airbag.
ARGUMENT
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 the Geiers' claims in this case are not preempted by the Safety Act. The first -- and the "touchstone" for all of the others -- is that Congress did not intend to preempt them. To the contrary, Congress clearly and unequivocally preserved them.
A. PLAINTIFFS' CLAIMS ARE NOT EXPRESSLY PREEMPTED
BECAUSE CONGRESS EXPRESSLY PRESERVED THEM.
Congress enacted the Safety Act on September 9, 1966. Its sole stated purpose in doing so was "to reduce traffic accidents and deaths and injuries to persons resulting from traffic accidents." 15 U.S.C. § 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 that a "safety standard" promulgated under the Act will only preempt a state legislative or administrative "safety standard" that is not identical to the federal standard.
Second, if Congress intended the preemption provision to apply to common
law claims, it would likely have chosen words that more clearly did so --
particularly since it referred specifically to common law liability in the
Safety Act's anti-preemption provision. The term "safety standards"
is hardly a clear reference to common law claims. See Medtronic,
116 S. Ct. at 2253 ("[I]f Congress intended to preclude all common-law
causes of action, it chose a singularly odd word ["requirement"]
with which to do it. The statute would have achieved an identical result,
for instance, if it had precluded any `remedy' under state law relating
to medical devices.").
Third, the "safety standards" referred to in the Safety Act's
preemption provision are those that concern an "aspect of performance."
This was not an idle choice of words by Congress. As the Senate Report accompanying
the Safety Act explained:
Unlike the General Services Administration's procurement standards, which
are primarily design specifications, both the interim standards and the
new and revised standards are expected to be performance standards, specifying
the required minimum safest performance of vehicles but not the manner in
which the manufacturer is to achieve the specified performance. . . . The
Secretary would thus be concerned with measurable performance of a braking
system, but not its design details.
S. Rep. No. 1301, 89th Cong., 2d Sess. 6 (1966) (emphasis added). Common law claims, in contrast, do not set specific minimum performance standards; they focus -- as motor vehicle safety standards do not -- on the manner in which the manufacturer chose to achieve the specific performance. Indeed, this case focuses on whether Honda'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.
Finally and most tellingly, if the preemption provision did apply to common
law claims, it would, by its terms, preempt virtually all common law claims,
including those routinely allowed by the courts over the past thirty years.
To put it simply, Honda's express preemption argument -- adopted by the
District Court below -- proves too much. Federal motor vehicle safety standards
are currently in effect as to almost all aspects of performance of motor
vehicles and their equipment. Since those standards preempt any state "safety
standard applicable to the same aspect of performance . . . which is not
identical to the Federal standard," 15 U.S.C. § 1392(d), they
would preempt almost all common law claims -- and leave design defect victims
with no remedy -- if common law claims really did establish state "safety
standards." Obviously, they do not.
In Medtronic, the medical device manufacturer 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, Honda'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. The Safety Act's express preemption provision simply does not
apply to common law claims.
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 common law liability." 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).
Recent opinions interpreting the savings clause -- with the benefit of the
Supreme Court's Medtronic decision -- have noted the difficulty in giving
it the reading urged by Honda below. "It is hard to imagine how Congress
could have been plainer in its intended meaning in this regard and it takes
tortured syntax and law to propose a newly fashioned version of what it
actually said." Drattel, (N.Y. Ct. App. No. 65, June 16, 1998)
Slip Op. at 14. The court went on:
It strains reason and common sense to suggest that Congress used sweeping
language to create a constricted universe. That would not make good law
or justifiable judicial analysis. Additionally, the narrow construction
urged would render the savings clause a mere redundancy since the preemption
clause itself provides that where a federal standard does not govern the
same aspect of performance as the state standard, the state standard is
not preempted. Proper statutory construction rubrics do not allow for such
hollowness.
Id. at 14-15. Likewise, the Supreme Court of Texas -- mindful that it needed
to find a "clear and manifest" intent on the part of Congress
to preempt -- found "[t]he strongest indication that Congress did not
clearly intend to preempt common-law claims such as the Alvarados' is, of
course, the Safety Act's savings clause." Alvarado, (Tx. Sup.
Ct., No. 95-0969, June 5, 1998) Slip Op. at 13, 14-15.
The District Court nonetheless found the Geiers' claims expressly preempted
by explicitly re-writing the Safety Act to mean "compliance with Federal
Standards does not exempt anyone from liability that the States have authority
to impose." Memorandum at 3, Appendix at 9. That, however, is not what
the Safety Act says. And, under our Constitutional system of government,
no court -- however well intentioned -- is free to rewrite Congress's words
to achieve its desired 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.").
Honda did not advance the unusual interpretation of the savings clause adopted
by the District Court below. Instead, Honda argued that § 1397(k) is
not really addressed to federal preemption at all; it is addressed to whether
compliance with federal standards is a defense on the merits under state
law. This reading of the savings clause makes no sense, particularly in
light of the interpretation of the preemption provision that Honda advanced
below. According to Honda, any common law claim that relates to the same
aspect of performance as a federal motor vehicle safety standard is preempted
by direct operation of the preemption provision. If such claims were preempted
by the preemption clause, however, the savings clause would not logically
relate to them. That is, there would be no reason for Congress to have negated
the affirmative state law defense of compliance with government standards
with respect to claims that fall within the scope of the preemption provision,
because those claims would already be extinguished by virtue of preemption.
Thus, under the reading advanced by Honda -- and found proper by the court
below -- the savings clause could only logically relate to claims that survive
the preemption provision because they concern an aspect of motor vehicle
performance that is not subject to a federal safety standard. But here Honda's
argument breaks down completely, because there could be no affirmative defense
of compliance with a federal standard that does not exist. In other words,
under Honda's reading of the preemption provision, the savings clause could
only apply in cases where it would necessarily have no legal effect. Honda
would essentially render the section's plain language and purpose nugatory.
In an effort to salvage its interpretation of the Safety Act, Honda may
argue (as other auto manufacturers have) that the savings clause was merely
intended to show that Congress did not intend to occupy the entire field
of motor vehicle safety. This argument fails for two reasons. First, it
conflicts with Honda's other argument about the meaning of the savings clause.
Second and far more important, it cannot be squared with the language of
the preemption provision. The preemption provision by its terms applies
only when there is a federal safety standard in place and a state safety
standard regulates "the same aspect of performance" as the federal
standard. Thus, the scope of the preemption provision is clearly limited
to situations where state and federal regulations address the same matter.
The preemption provision cannot be read to give rise to any broader "field"
preemption of matters not regulated by the federal agency. Accordingly,
there would be no reason for the savings clause to address, and affirmatively
negate, the prospect of such broader field preemption.
In short, Honda cannot escape the logical conclusion that Congress wrote
the savings clause with one result in mind: to make crystal clear that no
common law claims are preempted under the Safety Act. The Safety Act's legislative
history confirms this fact.
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, if one looks to the Safety Act's legislative history, it only confirms that Congress intended to preserve all common law claims.
a. The Senate Bill.
The bill reported out of the Senate Commerce Committee and passed by the
full Senate contained a preemption provision similar to the bill ultimately
enacted into law. See 112 Cong. Rec. 14,257 (1966). But the Senate bill
did not include a savings provision. Even so, the Senate Committee Report
stated that:
[T]he Federal minimum safety standards need not be interpreted as restricting
State common law standards of care. Compliance with such standards would
thus not necessarily shield any person from product liability at common
law.
S. Rep. No. 1301, 89th Cong., 2d Sess. 12 (1966). And Senator Magnuson, the sponsor of the Senate bill, stated on the floor of the Senate that:
Compliance with Federal standards would not necessarily shield any person
from broad liability at the common law. The common law on product liability
still remains as it was.
112 Cong. Rec. 14,230 (1966)(emphasis added).
b. The House Bill.
The original House bill contained a preemption provision similar to the
preemption provision in the Senate bill, and, like the Senate bill, did
not contain a savings provision. See H.R. 13228, 89th Cong., 2d Sess. (introduced
on March 2, 1966). During hearings on that bill, however, Tom Triplett,
an attorney from South Carolina, raised the following pointed concern regarding
the possible effect of the House bill on the liability of manufacturers
under state law:
We need a traffic safety agency and we need to research our problem from
end to end, but we don't need to relieve the manufacturer of his natural
responsibility for the performance of his product.
You may think that the manufacturer is afraid of Government regulation but the cry you are hearing may be "Brer Fox, please don't throw me in the briar patch." If the Government assumes the responsibility of safety design in our vehicles, the manufacturers will join together for another 30-year snooze under the veil of Government sanction and in thousands of courtrooms across the Nation wronged individuals will encounter the stone wall of "Our product meets Government standards," and an already compounded problem will be recompounded.
Hearings on H.R. 13228 Before the House Committee on Interstate and Foreign Commerce, 89th Cong., 2d Sess. 1249 (1966) ("House Hearings").
Representative Farnsley, a member of the Committee, referred to Mr. Triplett's
testimony a few moments later:
This gentlemen has raised, perhaps not brilliantly but I think well, [a]
question. . . . He said Brer Rabbit told Brer Fox, "Don't throw me
in the briar patch.". . .
. . .
Now the question is up: Is the manufacturer responsible for inherent
dangerous design? If there are Federal standards, this man has said this
brings an absolute wall against those suits, and he feels that the manufacturers
want these standards. I think maybe he has a point. . .
[T]he courts, under the old common law and our statutes, hold them responsible.
Now I think we should take a long time before we change that responsibility.
I have talked longer than I intended to, but I feel this is very important.
Id. at 1256-57.
Representative Farnsley then engaged in the following colloquy with Committee Chairman Staggers, who was the sponsor of the House bill:
THE CHAIRMAN. I would say to you again, and I have this much faith and I
know you do too, in the men who sit on this committee, that we will not
put an umbrella over anyone.
MR. FARNSLEY. Good. You believe, then, you can set Federal standards and
this isn't a defense in a lawsuit, to say, "We have met Federal standards"?
That is what this witness said.
THE CHAIRMAN. That is not the intent of this legislation.
MR. FARNSLEY. I know it is not the intent, but is it possible?
THE CHAIRMAN. It could be if we did not accept our responsibility here as
a committee. But we do not intend to put that umbrella up, I assure you.
Id. at 1258 (emphasis added).
Representative Mackay intervened to drive the point home:
With regard to title I, which I predict is going to be the real hard nut
to crack in the minds of the committee because of its complexity, the agency
bill provides for certification of vehicles that actually met minimum safety
standards.
This does not preclude building a car with higher standards of safety, nor does it relieve makers of any legal liability whatsoever in terms of their obligation to the consumer.
Id. at 1260 (emphasis added).
Consistent with the foregoing, the House Committee amended the original House bill by inserting a savings provision identical in all respects to the savings provision ultimately signed into law: "Compliance with any Federal motor vehicle safety standard issued under this title does not exempt any person from any common law liability." See 112 Cong. Rec. at 19,657 (1966) (emphasis added). This savings provision was explained in the House Committee Report as follows:
It is intended and this subsection specifically establishes, that compliance
with safety standards is not to be a defense or otherwise to affect the
rights of parties under common law particularly those relating to warranty,
contract, and tort liability.
H.R. Rep. No. 1776, 89th Cong., 2d Sess. 24 (1966) (emphasis added).
During the floor debates on the reported House bill, Representative O'Neill
proposed an amendment that would have strengthened the remedial provisions
of the bill by adding criminal penalties for willful violations of the Act.
In opposing this amendment, Representative Dingell, a member of the House
Committee that had reported the bill, stated:
We are told . . . that this legislation is not strong enough. A look at
the bill, at what the committee has brought to the floor, disproves this.
. . . [W]e have preserved every single common-law remedy that exists against
a manufacturer for the benefit of a motor vehicle purchaser. This means
that all of the warranties and all of the other devices of common law which
are afforded to the purchaser, remain in the buyer, and they can be exercised
against the manufacturer.
112 Cong. Rec. 19,663 (1966) (emphasis added).
The amendment was defeated. Id. at 19,664. The reported bill then passed the full House with certain minor amendments not relevant here. Id. at 19,664-19,669.
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. 4. Standard 208.
Given Congress's clear and unequivocal preservation 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 1987 Honda Accord 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 implied
preemption reasoning urged by Honda below and adopted by courts elsewhere,
that argument is based, in part, on a misperception of Standard 208's history
and content. We briefly review the history of Standard 208 here to make
the record clear.
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 1987 Honda Accord in this case was manufactured, Standard
208 required, at a minimum, some form of passive restraint in a specified
percentage of all 1987 model-year cars. 49 C.F.R. § 571.208. It did
not prohibit Honda, 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. The latter is what the Safety
Act clearly requires.
5. The Bottom Line.
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's approach. Nevertheless, Honda insisted below --
and the District Court agreed -- 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's
intent in enacting the Medical Device Amendments of 1976. Similarly, the
Supreme Court said in Goodyear Atomic Corp. v. Miller, 486 U.S. 174
(1988):
The effects of direct regulation on the operation of federal projects are
significantly more intrusive than the incidental regulatory effects of such
an additional award provision. Appellant may choose to disregard Ohio safety
regulations and simply pay an additional workers' compensation award if
an employee's injury is caused by a safety violation. We believe Congress
may reasonably determine that incidental regulatory pressure is acceptable,
whereas direct regulatory authority is not. Cf. Silkwood v. Kerr McGee
Corp., 464 U.S. at 256 (Congress was willing to accept regulatory consequences
of application of state tort law to radiation hazards even though direct
state regulation of safety aspects of nuclear energy was preempted).
Id. at 185-86 (footnote omitted). See also English v. General Elec. Co., 496 U.S. 72, 85 (1990) (holding that the regulatory effect of petitioner's state common law claims was "neither direct nor substantial enough" to place them within the preempted field). If there is any tension between plaintiffs' common law claims and Standard 208, that is a tension that Congress intended to create when it enacted § 1397(k). The courts are not free to disturb that decision. Silkwood, 464 U.S. at 256.
Thus, it was hardly novel for Congress to choose to preempt state legislative
and administrative safety standards that are different than a federal standard,
while leaving common law claims intact. In fact, this has often been Congress's
approach in the area of consumer protection.
While some may disagree with it, this approach clearly makes sense. As Honda
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 Appeals noted in a preemption
decision handed down on the heels of Medtronic, 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 v. Hyundai Motor Co.,
57 Cal. Rptr. 595, 599 (Cal. App. 2 Dist. 1996).
For all of these reasons, even the four federal appeals courts that adopted
the manufacturers' implied preemption argument prior to Cipollone
agreed that the Safety Act does not expressly preempt any common law claims.
See Pokorny v. Ford Motor Co., 902 F.2d at 1120-26; Taylor v.
General Motors Corporation, 875 F.2d at 823-25; Kitts v. General
Motors Corp., 875 F.2d at 789; Wood v. General Motors Corp.,
865 F.2d at 403-07. Once this Court accepts the findings of the great weight
of authority -- that Congress did not expressly preempt common law claims
-- the analysis of the preemption issue ends. For, as Cipollone,
Myrick, and Medtronic make plain, Congress's unequivocal words
preclude consideration of Honda'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 181 (3d Cir. 1986); Palmer v. Liggett Group, Inc., 825 F.2d
620 (1st Cir. 1987). The Supreme Court, however, insisted that the only
question properly considered was whether the statutes' preemption provisions
expressly preempted plaintiffs' claims. This approach, the Court said "is
a variant of the familiar principle of expressio unius est exclusio alterius:
Congress's enactment of a provision defining the preemptive 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 preemptive reach of a statute
"implies" -- i.e. supports a reasonable inference -- that Congress
did not intend to preempt 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 preemption clause
forecloses implied preemption; 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 preempts state law. While the preemptive
language of §360k(a) means that we need not go beyond that language
to determine whether Congress intended the MDA to preempt at least some
state law, we must nonetheless identify the domain expressly preempted 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's words, they all agreed that, because 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: Honda's anticipated implied
preemption arguments cannot be considered. Even before Medtronic,
courts throughout the nation were holding that, under Cipollone and
Myrick, Congress's plain words precluded consideration -- much less
a finding -- of implied preemption. Thus in Ford Motor Company v. Tebbetts,
140 N.H. at 207, the Supreme Court of New Hampshire unanimously said:
Having determined that the preemption clause when read in tandem with the
saving clause "provides a reliable indicium of congressional intent
with respect to state authority, there is no need to infer congressional
intent to preempt 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 preempted by the Safety Act or standards
promulgated thereunder. And while fully subscribing -- as we must -- to
Myrick's teaching that an express preemption clause does not as a
rule foreclose implied preemption, for the reasons set forth above, we hold
that the § 1397(k) preemption clause entirely forecloses any possibility
of implied preemption in this case.
Some courts, however, including the Tenth Circuit in Montag, 75 F.3d at 1414, issued brief decisions after Cipollone and Myrick still adopting the manufacturers' implied preemption arguments. See also Irving v. Mazda Motor Corp., 136 F.3d 764 (11th Cir. 1998). The U.S. Supreme Court's decisions in Cipollone, Myrick, and Medtronic make clear that such an approach was in error. Indeed, finding the Safety Act "provides a comfortable fit to Myrick in this regard," the New York Court of Appeals found "the Safety Act's express preemption clause combined with the savings clause and overall legislative history provide far more than a `reliable indicium of congressional intent' to preserve common-law causes of action such as plaintiffs' action," cutting off any need to resort to an implied preemption analysis. Drattel, supra, Slip Op. at 17-18.
Despite the foregoing, Honda contended below and is expected to argue here
that implied preemption could be considered because the Safety Act's express
preemption provision is not a "reliable indicium of Congressional intent"
and Honda's claim of implied preemption is based on a federal regulation,
not the statute. Neither argument holds water. While the Safety Act's express
preemption provision may not, standing alone, 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 provides a reliable -- indeed, a conclusive -- indicium of Congress's
intent to preserve all common law claims. Honda's reliance on a federal
regulation, moreover, makes no difference. It is Congress's intent -- not
the agency's or the courts' -- that is the "ultimate touchstone of
preemption analysis." Cipollone, 112 S.Ct. at 2617.
Accordingly, there is no basis for considering any of the implied conflict
arguments advanced by Honda. 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 because plaintiffs' claims do not conflict with the Safety Act or NHTSA's regulations. Honda's anticipated preemption argument is based on the assertion that the introduction of evidence showing that the 1987 Honda Accord 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.
First, as in Myrick, 115 S.Ct. at 1488, "it is not impossible
for [Honda] to comply with both federal and state law." It is undisputed
that Standard 208 permitted (but did not require) manufacturers to select
a design choice that incorporates an airbag. See 49 C.F.R. § 571.208.
That being the case, introduction of evidence concerning the airbag-incorporating
alternative design choices available to Honda (evidence which plaintiffs
must produce to meet their burden of proof) does not in any way "conflict"
with the federal regulatory scheme. "As Standard [208] imposes no requirements
either requiring or prohibiting [airbag] systems," Myrick, 115
S.Ct. at 1488, Honda could have complied with federal and state law by installing
an airbag in the vehicle at issue in this case. It could also comply with
both laws simply by compensating plaintiffs for the injuries its actions
caused. Thus, there can be no claim that it is impossible for Honda to comply
with both Standard 208 and a jury verdict finding it liable in this case.
Honda argued below, however, that introduction of evidence involving airbags
is impliedly preempted because a finding of liability based -- even in part
-- on Honda's failure to install airbags would deprive Honda of its federally
mandated "option" to choose among the design choices set forth
in Standard 208. This argument fails for two reasons. First, even if plaintiffs
contended that Honda 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. Second,
plaintiffs do not contend that Honda should have chosen a different "option"
under Standard 208. Rather, they maintain that Honda should have done more
than the bare minimum required by the "option" it chose. Honda
was plainly free to install an airbag -- in addition to the manual three-point
lap belt and shoulder harness -- in the 1987 Honda Accord.
In this regard, it is particularly instructive to note that the United States
supports plaintiffs' position in this case. In an amicus brief submitted
to the U.S. Supreme Court nearly a decade ago, the United States said that
"the Safety Act does not expressly or impliedly preempt design defect
tort actions based on the claim that a vehicle was defective simply because
it did not contain an airbag." Wood v. General Motors Corp.,
No. 89-46 (October Term 1989), Brief for the United States as Amicus
Curiae, at 7. Moreover, in a brief filed by the United States with the
Supreme Court in Myrick, the Solicitor General specifically rejected
the argument that the existence of three design options in Standard 208
"in itself preclude[s] state-court judgments based on the failure to
install one particular option." Freightliner Corp. v. Myrick,
No. 94-286 (October Term 1994), Brief for United States as Amicus Curiae
Supporting Respondents, at 29.
Honda also argued below that plaintiffs' claims are impliedly preempted
because allowing them to proceed would destroy the uniformity the Safety
Act is supposedly meant to achieve. The Safety Act, however, has no such
stated goal. "The clearest possible expression of legislative purpose
is provided in the first section of the Act itself: `the purpose of this
chapter is to reduce traffic accidents and deaths and injuries to persons
resulting from traffic accidents.' 15 U.S.C. § 1381." Chrysler
Corp. v. Tofany, 419 F.2d 499, 508 (2d Cir. 1969).
While uniformity may have been a subsidiary goal for this enactment, it
was not the primary overriding goal that would carry the forbidding consequences
of implied conflict preemption. ...The uniformity argument is plainly insufficient
in this case to supply the implied "conflict" preemption "kicker,"
necessary to override the other express and controlling language of the
Safety Act's preemption and savings clauses, and the legislative history.
We would go so far as to assert that an implied "conflict" preemption
finding here might undermine the purpose and policies underlying the Safety
Act and might contradict its express provisions.
Drattel, supra, Slip Op. at 22-23 (quotations and citations omitted).
See also Alvarado, supra, Slip Op. at 21 ("We also decline to
elevate a `secondary purpose' so as to frustrate Congress's primary purpose.
Similarly, we do not believe that the secondary goal of providing manufacturers
with a choice outweighs the primary goal of reducing deaths and injuries.").
Moreover, Honda's assertion that uniformity is essential directly conflicts
with its contention that Honda 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."
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) ("[T]he 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.
CONCLUSION
For all of the reasons set forth above, this Court should reverse the
trial court's decision and remand this case for trial. The Safety Act means
what it says: common law claims are not preempted.
Respectfully submitted,
THE LAW OFFICES OF ROBERT M.N. PALMER, P.C.
Robert M.N. Palmer
William Petrus
205 Park Central East, Suite 511
Springfield, MO 65801
(417)855-3234
CADEAUX & TAGLIERI, P.C.
James A. Taglieri
1100 Connecticut Avenue, NW, Suite 800
Washington, D.C. 20036
(202) 785-3373
Arthur Bryant
Trial Lawyers for Public Justice
1717 Massachusetts Ave., N.W., Suite 800
Washington, D.C. 20036
(202) 797-8600
Attorneys for Plaintiffs-Appellants
Certificate Regarding Circuit Rule 28(d)
I hereby certify that the foregoing Brief of Plaintiffs-Appellants conforms
to Circuit Rule 28(d) and according to the word count provided by the word
processing system on which it was prepared is within the limits of that
rule.
____________________________________________
Robert M.N. Palmer
The Law Offices of Robert M.N. Palmer, P.C.
205 Park Central East, Suite 205
Springfield, MO 65806 CERTIFICATE OF SERVICE
I hereby certify that two copies of the foregoing were delivered via Federal Express this ___ day of July, 1998 to the following:
Benjamin Boyd, Esq.
PIPER & MARBURY L.L.P.
1200 19th Street N.W.
Washington, DC 20036
Attorneys for Defendants