Robert M.N. Palmer
William Petrus
The Law Offices of Robert M.N. Palmer, P.C.
205 Park Central East, Suite 511
Springfield, MO 65801-5720
James W. Taglieri
Cadeaux & Taglieri, P.C.
1100 Connecticut Avenue, Suite 800
Washington, D.C. 20036
Arthur Bryant
Trial Lawyers for Public Justice
1717 Massachusetts Avenue, NW, Suite 800
Washington, D.C. 20036
Dated August 24, 1998
INTRODUCTION AND SUMMARY OF ARGUMENT
In our opening brief, we began by pointing out that the district court disregarded the two guiding "presumptions about the nature of preemption" re-emphasized just two years ago by the United States Supreme Court in Medtronic Inc. v. Lohr, 116 S. Ct. 2240, 2250 (1996) ("Medtronic"). The first is that, "because the States are independent sovereigns in our federal system," preemption analysis begins with a strong presumption against preemption of state law, particularly in "matters of health and safety." Id. The second is that the sole task of preemption analysis is to ascertain Congress' intent -- by carefully reviewing Congress' words and its reasons for adopting them. "[T]he purpose of Congress is the ultimate touchstone in every preemption case." Id. (quotation marks deleted).
Incredibly, Honda's brief ignores these guiding principles, too. First,
Honda does not even mention the presumption against preemption. Instead,
it focuses solely on the primacy of federal law and the "number of
ways" that preemption can take place. Honda's Brief at 11. As a result,
Honda's brief -- like the decision below -- is flawed from the start. It
fails 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, while the question presented by this appeal is whether Congress
intended Honda's compliance with Federal Motor Vehicle Safety Standard 208
to exempt Honda from liability under common law, Honda spends the first
31 pages of its 38-page brief avoiding what Congress actually said about
this issue: "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). It then resorts to arguing that Congress' words do
not mean what they say. And it insists that the Congressional testimony
that prompted Congress to adopt these words -- Tom Triplett's warning that
the auto manufacturers were playing Brer Rabbit and would use federal regulations
to avoid common law liability -- has no "relevance" at all because
"Mr. Triplett was not a Congressman." Honda's Brief at 18 n.7.
Honda ignores the presumption against preemption and avoids Congress' plain
words for as long as it can for a simple reason: it cannot overcome them.
That being so, Honda employs a diversionary tactic instead. It repeatedly
asserts that plaintiffs are really challenging the federal government's
regulatory decision to adopt Standard 208 and seeking to "require that
manufacturers install air bags, not seatbelts, in all vehicles..."
Honda's Brief at 12. Nothing could be farther from the truth.
Plaintiffs in this case have no quarrel with the federal government's decision
to promulgate Standard 208. As far as plaintiffs are concerned, Secretary
Dole's 1984 decision not to require the auto manufacturers to install "airbags
only" (that is, airbags and not seatbelts) in all cars was eminently
reasonable. (Indeed, plaintiffs do not contend that there should have been
"airbags only" in the Honda at issue in this case.) When Secretary
Dole made this decision, she did so, in part, because she specifically found
that "the most effective system is an airbag plus a lap and shoulder
belt." 49 Fed. Reg. 28986 (emphasis added). (That, of course, is the
system plaintiffs contend should have been used.) In so doing, Secretary
Dole emphasized that "potential liability for any deficient system"
would help prompt manufacturers to do the right thing. Id. at 29000. And
she pointedly quoted the "potential source of manufacturer liability"
raised by Stephen Teret on behalf of the National Association for Health
Policy: "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.
Plaintiffs' claims are, therefore, wholly consistent with both the Safety
Act and Standard 208 itself. Given these facts, Honda's express and implied
preemption arguments should be rejected on three basic grounds.
First and foremost, plaintiffs' common law claims are not preempted because
Congress expressly and unequivocally preserved them. It said: "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) (emphasis
added). As the unanimous appellate decisions issued in the Safety Act's
first twenty years make plain, these words mean precisely what they say.
Honda, however, does not mention those decisions and, remarkably, does not
even mention these words in its express preemption argument. See Honda's
Brief at 12-18. Instead, Honda's entire express preemption argument -- like
the decision below -- boils down to the proposition that, since state legislative
and administrative "safety standards" are preempted by 15 U.S.C.
§ 1392(d), common law claims must be preempted by it, too. But Congress
thought otherwise, as § 1397(k) makes plain. That fact is determinative.
As the overwhelming majority of courts to consider the question have decided,
the Safety Act does not expressly preempt any common law claims.
Second, because the Safety Act clearly and unequivocally preserves all common
law claims, Honda's implied preemption arguments cannot be considered. Honda
contends that implied preemption was barred in Cipollone v. Liggett Group,
Inc., 112 S. Ct. 2608 (1992), because the statutes in that case contained
no express provisions addressing the preemption of common law claims, but
that implied preemption can be reached here because the Safety Act contains
section 1397(k). That contention turns preemption analysis on its head.
It is the purpose of Congress that is "the ultimate touchstone in every
preemption case." Medtronic, 116 S. Ct. at 2251. When Congress
has spoken expressly and clearly, that ends the analysis.
Third, even if Honda's implied preemption arguments could be considered,
they would have to be rejected. Plaintiffs' common law claims simply do
not conflict with the Safety Act or Standard 208. Neither the Safety Act
nor Standard 208 prevented Honda from installing an airbag (along with a
manual lap belt and shoulder harness) in the car at issue in this case.
Honda simply did the bare minimum required by federal law, instead of installing
what Secretary Dole called "the most effective system." 49 Fed.
Reg. 28986. The Safety Act made clear that Honda's compliance with Standard
208 would not exempt it from common law liability and Secretary Dole noted
that "[p]eople 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.
That is exactly what plaintiffs seek to do in this case. The district court's
decision finding their common law claims expressly preempted was in error.
ARGUMENT
A. PLAINTIFFS' COMMON LAW CLAIMS ARE NOT EXPRESSLY PREEMPTED BECAUSE CONGRESS
EXPRESSLY PRESERVED THEM.
In our opening brief, at 4-5, we demonstrated that every federal and state appeals court to consider the Safety Act's preemptive effect in its first 20 years held that Congress' words mean what they say: "Compliance with any Federal motor vehicle safety standard . . . does not expect any person from any liability under common law." 15 U.S.C. § 1397(k). We further showed, at 6-7, that prior to the U.S. Supreme Court's decision in Cipollone,112 S. Ct. at 2608, all four federal circuits to address the issue found "no-airbag" claims impliedly, but not expressly, preempted – and that the Supreme Court effectively overruled those implied preemption decisions in Cipollone. Finally, we proved, at 13-32, that, as even those four federal circuit courts concluded, Honda's express preemption arguments cannot be squared with the presumption against preemption or Congress' plainly-stated intent.
In its brief, Honda does not even mention the unanimous appellate decisions
issued during the Safety Act's first twenty years, even though Honda's express
preemption argument (if adopted) would prevent all of them from being heard.
Nor does Honda discuss what Congress actually said about common law claims
in its express preemption argument. In fact, the entire express preemption
portion of Honda's brief fails to mention § 1397(k) at all. See Honda's
Brief at 12-18. Instead, Honda's express preemption argument focuses solely
on 15 U.S.C. § 1392(d) – which does not mention common law claims
– as if that were the best (and only) explicit statement of Congress'
intent. Honda's approach is untenable. And its reliance on § 1392(d)
is misplaced.
In our opening brief, at 13-17, we demonstrated that, even if the Safety
Act contained no express anti-preemption provision, § 1392(d) –
narrowly read in light of the presumption against preemption – would
not preempt common law claims. Honda asserts, however, that Cipollone
and Medtronic establish a general rule that statutory language preempting
state "requirements" or "standards" necessarily preempts
state common law claims. Honda's Brief at 12-14. 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.
Thus, even statutory language preempting state "requirements"
does not always preempt common law claims. Moreover, the Safety Act does
not preempt state "requirements." Section 1392(d)'s scope is far
more limited – preempting only a limited set of "safety standards"
that are applicable to the same "aspect of performance" as a Federal
motor vehicle safety standard and are "established" or "continued
in effect" by a "State or political subdivision of a State."
As we explained in our opening brief, at 13-17, this language – narrowly
read in light of the presumption against preemption – is plainly limited
to positive legislative and administrative enactments.
Honda primarily contests our interpretation of § 1392(d) by misstating
our position. First, Honda attributes to us the "frivolous argument"
that § 1392(d) only preempts state regulations and not state legislation.
Honda's Brief at 16. Our opening brief, however, plainly states, at 15,
"Thus, the only sensible reading of the Safety Act's preemption provision
is that a ‘safety standard' promulgated under the Act will only pre-empt
a state legislative or administrative ‘safety standard' that is not
identical to the federal standard." Second, Honda insists that we are
"ignor[ing] the fact that several cases have found preemption of common
law claims without any explicit reference to the common law," Honda's
Brief at 17, as if we were arguing that no express preemption provision
could ever preempt common law claims unless it referred explicitly to them.
That is not our position. Rather, we contend that, when Congress enacts
a preemption provision that does not explicitly refer to common law claims,
along with a savings clause that does explicitly refer to common law claims,
that fact powerfully demonstrates that Congress did not intend the preemption
provision to extend to common law claims.
For the most part, Honda does not address the arguments we actually advanced
as to § 1392(d)'s scope. Honda does, however, contest our assertion
that § 1392(d) only preempts performance standards, by noting that
§ 1392(d) preempts "any safety standard applicable to the same
aspect of performance of such vehicle or item of equipment." Honda's
Brief at 17. The language quoted by Honda, however, proves our point. The
safety standard must be "applicable to the same aspect of performance"
of the vehicle or item of equipment in order to be covered by § 1392(d).
Honda also argues that Standard 208 is "unique among the federal standards"
because it actually "mandates how a vehicle or item of vehicle equipment
should be designed." Honda's Brief at 17. But that's not true. Standard
208 does not require manufacturers to utilize any particular design. As
Honda's own brief states, at 8, quoting the federal government, "any
restraint system that provides the specified performance may be used to
comply with the standard."
Nevertheless, relying heavily on Harris v. Ford Motor Co., 110 F.3d
1410 (9th Cir. 1997), Honda insists – like the district court below
– that § 1392(d) expressly preempts plaintiffs' common law claims
because it preempts all state law "standards" that are not "identical"
to federal standards. Honda's Brief at 15-16. This argument, however, ignores
both the presumption against preemption and the narrow scope of § 1392(d)'s
actual words. Moreover, it proves far too much. If § 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, since very few are based
on standards "identical" to the federal standard -- and virtually
all design defect victims are left without a remedy. See Medtronic,
116 S. Ct. at 2251 ("Medtronic's construction would 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.").
The federal government, it should be noted, has repeatedly and forcefully
rejected Honda's express preemption argument. Nearly a decade ago, it told
the Supreme Court, "In our view, Section [1392](d) 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. Accord Freightliner
Corp. v. Myrick, No. 94-286 (October Term, 1994), Brief for the United
States as Amicus Curiae Supporting Respondents, at 16.
Moreover, just last year, the federal government told the Supreme Court
that the Federal Boat Safety Act of 1971, 46 U.S.C. § 4306, which contains
express preemption and savings clauses similar to the statute at issue here,
does not expressly preempt any common law claims. See Lewis v. Brunswick
Corp., No. 97-288 (October Term, 1997), Brief for the United States
as Amicus Curiae Supporting Petitioners, at 17-25.
Advancing reasons similar to those set forth in our opening brief, the United States urged the Court to reject the manufacturer's express preemption arguments because (a) the term "standard" in the statute's preemption clause "would not ordinarily be thought to include duties of care that derive from the process of common law adjudication" and is "best understood to refer to a more definite gauge prescribed in advance by legislative or administrative authorities," id. at 17-18; (b) a "court in a common law damages action would not normally be thought as a ‘State or a political subdivision of a State,'" id. at 18; (c) the statute establishes "performance rather than design requirements" and "tort liability may provide incentives for manufacturers to provide a higher standard of care than the ‘minimum safety standard' mandated by the Secretary," id. at 20-21; and (d) "the savings clause also makes clear Congress' explicit intent to preserve tort liability." Id. at 21.
In this case, too, the savings clause makes clear Congress's explicit intent
to preserve tort liability. But Honda does not mention the savings clause
in its express preemption discussion. Indeed, the most striking aspect of
Honda's brief is how long it takes to address what Congress actually said
about common law claims -- and what prompted Congress to use the words that
it did. Honda finally reaches the issue at page 31 of its 38-page brief.
And, even then, Honda struggles mightily to avoid the determinative effect
of Congress' plain words.
First, Honda insists that we have mischaracterized § 1397(k) by calling
it an "anti-preemption" clause. See Honda's Brief at 31. But that's
exactly what it is. And the term is not of our making. It was first used
by Justice Scalia in California Federal Savings and Loan Association
v. Guerra, 107 S. Ct. 683, 697 (1987), to characterize two provisions
of the Civil Rights Act of 1964. Like section 1397(k), neither of those
provisions contained the word "preemption." And, like Justice
Scalia's use of the term to characterize those provisions, our use of the
term to characterize § 1397(k) is entirely accurate.
Second, Honda insists that § 1397(k) is really a "general savings
clause" and that, as a rule, "general savings clauses" do
not preserve common law claims that conflict with federal law, but, rather,
simply reflect Congress' intent to preclude a finding of implied field preemption.
Honda's Brief at 4, 31. Whether or not that rule is true of "general
savings clauses" (whatever they may be), it plainly is not true of
section 1397(k). See Opening Brief at 18-21. As the Safety Act's legislative
history makes clear, 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. See id. at 21-25.
Third, Honda argues -- in direct contradiction to its second argument –
that § 1397(k) is not really a savings clause. "True savings clauses,"
it says, use different language. Honda's Brief at 34. As a result, Honda
concludes that § 1397 is not addressed to federal preemption at all;
it is addressed to whether compliance with federal standards is a defense
on the merits under state law. Honda's Brief at 33-34. In our opening brief,
at 20, we showed why this argument makes no sense. According to Honda, Congress
enacted § 1397(k) to define the contours of a defense on the merits
in an action under state law while simultaneously passing a provision prohibiting
that state law action from ever taking place. As Judge Selya noted: "It
would be a strange ‘savings clause' indeed which could salvage an action
on the merits in this fashion but be impuissant to stop preemption."
Wood v. General Motors Corp., 865 F.2d 395 (1st Cir. 1988) (Selya,
J., dissenting), cert. denied, 110 S. Ct. 1781 (1990). Honda attempts to
buttress this nonsensical argument with references to the Safety Act's legislative
history, see Honda's Brief at 18-19, 35, but those references actually undercut
Honda's position dramatically. Thus, the House Report cited by Honda, at
page 18 of its brief, says: "[C]ompliance with safety standards is
not to be a defense or otherwise to affect the rights of parties under common
law particularly those relating to . . . tort liability." H.R. Rep.
No. 1776, 89th Cong., 2d Sess. 24 (emphasis added). Honda, however, insists
that its compliance with Standard 208 eliminates the plaintiffs' rights
under common law. Similarly, Honda relies on a congressional colloquy in
which Committee Chairman Staggers reassures Representative Farnsley that
it "isn't a defense in a lawsuit, to say, ‘We have met Federal
standards'." Honda's Brief at 23. But that is precisely the defense
that Honda seeks to assert here.
For all of the foregoing reasons, the overwhelming majority of both federal
and state courts to considering the issue has held that the Safety Act does
not expressly preempt any common law claims. After reviewing these decisions
in detail, the New York Court of Appeals recently said, "We confidently
join this plethora of persuasive authority on the side of no express preemption."
See Drattel v. Toyota Motor Corp., 1998 WL 314236, *6 (N.Y. June
16, 1998) (collecting cases). This Court should do the same. And that should
end the analysis.
B. THE QUESTION OF IMPLIED PREEMPTION CANNOT BE REACHED BECAUSE CONGRESS CLEARLY AND EXPRESSLY PRESERVED ALL COMMON LAW CLAIMS.
In our opening brief, at 33-36, we showed that, because the Safety Act expressly evidences Congress' intent to preserve plaintiffs' common law claims, the courts are prohibited from finding them impliedly preempted. In response, Honda advances three arguments. We briefly address each of them here.
First, Honda mischaracterizes our argument. It says plaintiffs are "arguing
that where an express preemption clause exists, ‘a court is prohibited
from considering any doctrine of implied preemption.' Brief of Appellant
at p.33." Honda's Brief at 21 (emphasis added). In fact, what our brief
says at page 33 (emphasis added) is, "In Cipollone, the United
States Supreme Court made clear that, where Congress has spoken directly
and clearly on the preemption issue at state – as it did in the Safety
Act – a court is prohibited from considering any doctrine of implied
preemption." That statement is accurate. Under Cipollone, mere
existence of express preemption clause does not automatically preclude implied
preemption, since the clause may not even address, much less resolve, the
preemption issue at stake. But when Congress has expressly and clearly stated
its intent with respect to the preemption issue at stake – as Congress
has done here – then courts are prohibited from considering implied
preemption arguments.
Second, Honda says that this cannot be the law, because the Supreme Court
considered the defendants' implied preemption arguments in Freightliner
Corp. v. Myrick, 115 S. Ct. 1483 (1995), which was decided after Cipollone
and involved the Safety Act. "Simply put," Honda says, at 21,
"plaintiffs cannot and do not explain why the Supreme Court in Myrick
engaged in traditional implied preemption analysis." We can and we
will. In Myrick, the Supreme Court realized that, since no federal
standard was even in place, plaintiffs' claims would not be preempted regardless
of whether section 1392(d) preempted common law claims or section 1397(k)
preserved them. It, therefore, explicitly put those issues aside because
it was unnecessary to reach them. Myrick, 115 S. Ct. at 1487, n.5.
Reviewing defendants' arguments as if section 1397(k) did not exist (and
therefore, as if the Safety Act did not clearly state Congress' intent with
respect to the preemption issue at stake), it quite properly conducted both
a traditional express and implied preemption analysis and held that –
because no federal standard was in place – there was no preemption.
In this case, of course, a federal standard is in place and section 1397(k)
cannot be put aside. For these reasons, here, as in Cipollone, the
defendant's implied preemption arguments cannot be considered.
Finally, Honda 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. Honda's
Brief at 23. 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 Congress'
intent that is "the ultimate touchstone in every preemption case."
Medtronic, 116 S. Ct. at 2251. Here, Congress made its intent to
preserve all common law claims unequivocally clear. Honda's implied preemption
arguments, therefore, cannot properly be considered.
C. EVEN ASSUMING THAT IMPLIED PREEMPTION ANALYSIS IS PROPER HERE, PLAINTIFFS'
CLAIMS ARE NOT IMPLIEDLY PREEMPTED BECAUSE THEY DO NOT CONFLICT WITH THE
SAFETY ACT OR NHTSA'S REGULATIONS.
In our opening brief, at 36-40, we explained why, even if Honda's implied preemption arguments could be considered, plaintiffs' claims are not preempted because they do not conflict with either the Safety Act or Standard 208. Honda, of course, argues otherwise.
Before we address Honda's arguments, however, there are three larger points
to be made, about the nature of implied conflict preemption. To begin with,
the strong presumption against preemption of state law applies with just
as much force to implied preemption as it does to express preemption. 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
analysis, focuses solely on Congress' intent. Disregarding that fact, Honda
contends that state laws that conflict with federal laws are preempted by
direct operation of the Supremacy Clause regardless of Congress' intent.
Honda's Brief at 20. 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. Try as it might, Honda 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 clearly none exists."
English v. General Elec. Co., 496 U.S. 72, 90 (1990) (brackets and
ellipses deleted). Here, Honda asks this Court to seek out conflicts where
none clearly exists. The various reasons why Honda claims a conflict exists
are briefly summarized and rebutted below.
First, Honda contends that plaintiffs' common law claims deny Honda an "option"
provided by Standard 208 and thereby deprive Honda of its "flexibility."
Honda's Brief at 23-28. As we explained in our opening brief, at 37-38,
this argument is meritless because, among other reasons, plaintiffs do not
contend that Honda should have chosen a different "option" under
Standard 208 than it did. They simply maintain that Honda should have done
more than the bare minimum required by the "option" it chose.
The only "flexibility" that plaintiffs seek to deny Honda is a
"flexibility" that Congress and Standard 208 never purported to
give it – the "flexibility" to avoid liability for its actions
at common law.
Honda's "options" argument has been forcefully rejected by the
United States itself. Opposing the same argument advanced by General Motors,
the United States said to the Supreme Court:
Respondent argues that FMVSS 208 preempts state tort claims because that
standard has always allowed manufacturers to use various types of occupant
restraints . . . We disagree with this reasoning. Nothing in the Safety
Act or FMVSS 208 confers on car makers a "right" to comply with
the federal standards without tort liability, and Section 1397(k) proves
that Congress did not grant any such immunity. That state tort law may compel
an auto maker as a practical matter to choose one of the options authorized
by federal law also does not necessarily establish an actual conflict between
federal and state law. Federal standards are "minimum standard[s],"
15 U.S.C. § 1391(2), permitting manufacturers to use any design that
satisfies federal requirements. If any design "permitted" in this
sense could not be the subject of a common law design defect claim, manufacturers
would obtain by implication what Congress expressly denied them in Section
1397(k): immunity from common law liability by complying with minimum federal
standards.
Wood v. General Motors Corp., No. 89-46 (October Term 1989), Brief for the United States as Amicus Curiae, at 14-15.
Honda responds to this fact by describing the United States as taking a
"middle ground" and notes (as we did in our opening brief at 38
n.11) that the United States has argued, without success, for implied preemption
of "common law tort actions that imposed liability for failure to install
airbags (as opposed to other types of passive restraint devices)."
Honda's Brief at 26. But the United States is not occupying "middle
ground" in this case. It stands wholly on plaintiffs' side. Moreover,
United States' narrow (and unaccepted) implied preemption argument offers
Honda no comfort here. Plaintiffs do not claim that Honda should have installed
an airbag as opposed to other types of passive restraints.
Honda also supports its "options" arguments by again asserting
that Standard 208 is different from all other federal standards. Honda's
Brief at 28. Why is it supposedly different? Because it was (a) "the
result of [a] careful balancing of competing concerns by the agency,"
and (b) "the product of substantial regulatory objectives." Id.
Surely other standards share those traits.
Honda's second implied preemption argument is that plaintiffs' claims would
destroy the federal goal of uniform national standards. Honda's Brief at
28-29. As we explained in our opening brief, at 38-39, however, Congress
did not view uniformity of standards as a critical goal and did not authorize
the preemption of any common law claims to achieve it. While Honda takes
as to task for saying so, Honda's Brief at 29, the truth remains that the
sole stated purpose of the Safety Act is "to reduce traffic accidents
and deaths and injuries to persons resulting from traffic accidents."
15 U.S.C. § 1381. Honda argues otherwise, noting that a recodified
statute section is entitled "Uniformity of Regulations," Honda's
Brief at 29, but that fact hardly helps Honda. We agree that Congress was
interested in uniformity of regulations, but – to achieve the Safety
Act's sole stated purpose – it expressly preserved all common law claims.
Honda's third implied preemption argument is that Congress impliedly preempted
plaintiffs' claims by adopting 15 U.S.C. § 1410b(b)-(d). Honda's Brief
at 30. This provision, enacted in 1974, says that Federal motor vehicle
safety standards requiring airbags cannot be issued unless they are submitted
for legislative veto. Honda's reliance on this provision is erroneous for
numerous reasons – including that the provision says nothing about
preemption or common law claims and that the Supreme Court declared the
legislative veto unconstitutional in Immigration and Naturalization Service
v. Chadha, 426 U.S. 919 (1983). The most compelling reason, however,
is that, in keeping with Congress' wishes, the provision is no longer good
law. By its terms, 15 U.S.C. § 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 – ten 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 Motor Vehicle Manufacturers Association
v. State Farm Mutual Automobile Insurance Co., 103 S. Ct. 2856, 2864
n.7 (1982).
Fourth, Honda 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). Honda's Brief at 35-36. 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).
Ultimately, Honda's implied preemption argument fails because plaintiffs'
common law claims simply do not conflict with either the Safety Act or Standard
208. They do not conflict with the former because Congress expressly preserved
all common law claims. They do not conflict with the latter because Secretary
Dole fully anticipated – and explicitly noted – that common law
claims like plaintiffs' could be brought. Simply put, neither the Safety
Act nor Standard 208 prevented Honda from putting an airbag (along with
a manual lap belt and shoulder harness) in the car at issue in this case.
That being so, as six states' highest courts have held in the past three
years, there is no implied preemption. Drattel, 1998 WL at 314236
(NY June 16, 1998); Hyundai Motor Co. v. Alvarado, 1998 WL 288678
(Texas, June 5, 1998); Minton v. Honda of America Mfg., Inc. 684
N.E. 2d 648 (Ohio), reconsid. denied, 687 N.E. 2d 299 (1997); Munroe
v. Galati, 948 P.2d 1114 (Ariz. 1997); Wilson v. Pleasant, 660
N.E. 2d 327 (Ind. 1995); Ford Motor Co. v. Tebbetts, 165 A.2d 345
(N.H. 1995).
CONCLUSION
Thirty years ago, Tom Triplett gave prophetic testimony before Congress,
saying:
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). Alarmed by Mr. Triplett's testimony, Congress spoke with unmistakable clarity. It adopted 15 U.S.C. § 1397(k) and expressly preserved all common law claims.
Now, thirty years later, Honda urges this Court to ignore Congress' plain
words. And it says that Mr. Triplett's testimony should be given no weight
at all because "Mr. Triplett was not a Congressman." Honda's Brief
at 18, n.7. This Court should reject Honda's bid for immunity, reverse the
trial court's decision, and remand this case for trial.
Respectfully submitted,
By: ____________________________
Robert M.N. Palmer
William Petrus
THE LAW OFFICES OF
ROBERT M.N. PALMER, P.C.
205 Park Central East, Suite 511
Springfield, MO 65801-5720
(417)865-3234
James W. Taglieri
CADEAUX & TAGLIERI, P.C.
1100 Connecticut Avenue, Suite 800
Washington, D.C. 20036
(202)785-3373
Arthur H. Bryant
TRIAL LAWYERS FOR PUBLIC JUSTICE
1717 Massachusetts Avenue, NW
Suite 800
Washington, D.C. 20036
(202)797-8600
Attorneys for Plaintiffs-Appellants
August 24, 1998