Opposition Brief — Wood v. General Motors Corp.

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In The

Supreme Court of the United States

October Term, 1989

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

*

NicHOLas J. WItTTNER

GENERAL Motors Corpo!

New Center One Buildi | |

3031 West Grand Boulevard ihre mba

Detroit, MI 48232 CNter

(313) 974-1796

STEPHEN | BRO P (

JONI DAY REA ‘an K (

Metropolitan Square CAM & Asso

1450 G Street N.W One Memorial |

Washington, DC 21 ole Cambridge, MA

2 ED I

OL

QUESTION PRESENTED

The United States Court of Appeals for the First

Circuit held that federal law impliedly preempts a state

common-law claim that a 1976 motor vehicle is defective

because it was equipped with one restraint system option

granted by federal law, seat belts, not a different option,

airbags. All federal and state appellate courts to address

the question, and a host of trial courts, are in accord with

the First Circuit. Should this Court review the First Cir-

cuit’s decision?

il

TABLE OF CONTENTS

Page

QUESTION PRESENTED ...3 0. ccccsasenesegestecns i

INTRODUCTION. «5405 es0nee es PTT eer Torre I

STATEMENT OF THE CASE.......-esercscccesecs: z

I. PETITIONER'S CLAIM .....scscccccvessnress 2

I. THE SAFETY ACT .....cccscccsvecseses 3

TT. FMVSS 208 2.5.0 cescuscccovseys so eeness 4

A. 1972-1975: Congress Prohibits Any Stan-

B.

DD).

dard Mandating Airbags Unless Submnit-

ted To And Not Disapproved By It......

The Options. ....5-.csssdeseesserevsvecs:

1976-1981: Transportation Secretaries

Reject Mandatory Airbags...............

1. 1976: Secretary Coleman.............

a. Public Acceptance ..............-

b. Development of Technology and

Date ..icsvisveeraceavapureeneten

c. Increased Manual Belt Use.......

d. Disastrous Economic Conse-

QUONCOR ne vceerteeneed¥esanss

2. 1977-81: Secretary Adams............

1981-1989: The Final Decision .......... :

1. 1981: Secretary Lewit....c:+sccverces

2. 1984: Secretary DOM... .ccsecscssey:

ili

TABLE OF CONTENTS - Continued

Page

I. THE FIRST CIRCUIT’S DECISION FOLLOWS

IE MO ik doh od sh beceweessavecees: en)

Il. THE FIRST CIRCUIT’S DECISION DOES NOT

CONFLICT WITH THE HOLDING OF ANY

OTHER CIRCUIT OR STATE COURT OF LAST

RESORT

A. The State and Federal Courts Have Unani-

mously Held Airbag Claims Preempted.. 16

B. Petitioner’s Cases Are Not On Point, Much

Saw h aw rete hs ecb nce koe cane 20

Ill. THE FIRST CIRCUIT’S IMPLIED PREEMP-

TION DECISION DID NOT TURN ON THE

ISSUE THAT PETITIONER COMPLAINS

Eee Eas si ere ee eras bane seen’ or ees 23

ea wera d os sibs ¥¥ 45554 ¥ kno ecw antes 27

RULE 26.1 LIST (APPENDIX A) ............... App. 1

iv

TABLE OF AUTHORITIES

Page

Cases

Arbet v. Gussarson, 66 Wis.2d 551, 225 N.W.2d 431

SOU inde Vu eae VOaTeE Roce ae ean nee cee ee teres 22

Aronowitz v. General Motors Corp., Index No.

23118/84 (N.Y. Sup. Ct. Mar. 18, 1988)............ 18

Arrow Transp. Co. v. Southern Ry., 372 U.S. 658

J Se ae res eared eee, reer ee Te PE ern 27

Baird v. General Motors Corp., 654 F. Supp. 28 (N.D.

Se SE sca secon cba ecasee cee rea rev ives 16, 20, 23

Bass v. General Motors Corp., No. SA-86-CA-279

fee | a eg rere ns error 17

Brown v. Hotel & Restaurant Employees, 468 U.S. 491

Sa CR SP iets sent Ape cet ek a pieg ast Sry ae 25

Chicago & N.W. Transp. Co. v. Kalo Brick & Tile Co.,

SRP. PER OREINOD 65 6x6 6b on556%s cannes O2s 14, 20, 26

Cippolone v. Liggett Group, Inc., 789 F.2d 181 (3d

Cir. 1986), cert. denied, 479 U.S. 1043 (1987) ....... 14

Cox v. Baltimore County, 646 F. Supp. 761 (D. Md.

MR teeta cxkck Gxdbe aces cht es Cea re ia eeeEns passim

Davis v. Whitworth, No. 86-125-199 (Tex. Dist. Ct.

ee OE ira sso 6 Gos Ande See ewede Venue cers 17

Dawson v. Chrysler Corp., 630 F.2d 950 (3d Cir.

1980), cert. denied, 450 U.S. 959 (1981)............. 22

Distler v. General Motors Corp., Civ. No. 4-86-821

ee SS UPR Sy auc pabucda cuir es 17

Donnelly v. General Motors Corp., No. 86-576-JU (D.

oO Os RR ree eee were ete es opera 17

TABLE OF AUTHORITIES - Continued

Page

Dorsey v. Honda Motor Co., 655 F.2d 650 (5th Cir.

1981), cert. denied, 459 U.S. 880 (1982)............. 22

Falk v. Chrysler Corp., No. R-87-1057 (D.C. Md.

POU. DE, TOWNE ck ckcccstsceesdkerbet Cua 17

Felder v. Casey, __ U.S. __, 108 S. Ct. 2302 (1988) .... 25

Fidelity Fed. Sav. & Loan Ass‘n v. de la Cuesta, 458

WS. TEE CHIED o cc crs kcncd es ennee teens ubeeaeene 20

Fox v. Ford Motor Co., 575 F.2d 774 (10th Cir. 1978) .... 21

Free v. Bland, 369 U.S. 663 (1962).................... 25

Gardner v. Honda Motor Co., 536 N.Y.S.2d 303 (N.Y.

App. Div.), appeal dismissed 543 N.Y.S.2d 401

CTO sk ote as ehneie ahi 16, 23

Garman v. Mazda Motor Corp., No. 85-13839-F (Tex.

aeet. Ct. Apell 6, 1900) io. 5sSupeescceeaeee aes 17

Garrett v. Ford Motor Co., 684 F. Supp. 407 (D. Md.

Sy Pere ee Pe re eee em ES ee dee 20

General Motors Corp. v. Edwards, 482 So.2d 1176

CAM: TOGG) ii ods cesses s echt 21

Gingold v. Audi-NSU-Auto Union AG, No. 6155 (Pa.

C4. GFF Ble Se, OR. « snes ser eeene eres 17

Groves v. Chrysler, No. 84-7-302 (Or. Cir. Ct. March

3D, FOGG vas 6 cidea ed ees taans shies Gee 17

H.P. Hood & Sons, Inc. v. Ford Motor Co., 370 Mass.

OP, SOD NB OS Cele i co ketcds iar oe 21

Heftel v. General Motors Corp., 1988 Westlaw 19615

(DAD. Fam: Zo, SOs 6 6c ss ct iespiecs eee 16, 20, 23

vi

TABLE OF AUTHORITIES —- Continued

Page

Hill v. Oakland County Road Comm'n, No. 88-344327

NP (Mich. Cir. Ct. Nov. 9, 1988)...............05. 17

Hines v. Davidowitz, 312 U.S. 52 (1941) .............. 13

Howard v. American Motors Corp., Prod. Liab. Rep.

(CCH) J 11,955 (S.D. Tex. July 6, 1988) ....17, 19, 23

Hughes v. Ford Motor Co., 677 F. Supp. 76 (D. Conn.

TROP ince cw cess ka Cie eee 16, 18, 23

Hunt v. Ford Motor Co., Inc., No. 88-AR-1756 (N.D.

Als: ERG Sey Bes 6 ca cick corse caceeeeetre 17

Hunter v. General Motors Corp., Prod. Liab. Rep.

(CCH) ¥ 12,039 (D. Conn. Dec. 27, 1988).......... 16

I.N.S. v. Chadha, 462 U.S. 919 (1983)..............4... 6

International Paper Co. v. Ouellette, 479 U.S. 481

ISGP ce cicvcvocnskuvetaduees Ce 0baa 660 00 ee ere passim

Kane v. Mitsubishi Motor Sales of America Inc., No.

9649/88 (N.Y. Sup. Ct. June 19, 1989)............. 17

Kitts v. General Motors Corp., 875 F.2d 787 (10th Cir.

SSOP). cc ccctcccseiicey isi ieee eee 16, 18, 21, 23

Knippen v. Ford Motor Co., 546 F.2d 993 (D.C. Cir.

IF OR se céenvccecesesdsegpthateee ena aaa 21

Kolbeck v. General Motors Corp., 702 F. Supp. 532

(BOD. FG. THORP 00040 cdecaws ey teyeree esas eweneaes 16

Larsen v. General Motors Corp., 391 F.2d 495 (8th

Che: 1FGE) cc cicscsssssveccedusiens caer eee 22

Little v. Chrysler, No. 84-11-103 (Or. Cir. Ct. March

15, 1988) .................

vii

TABLE OF AUTHORITIES - Continued

Page

Mackey v. American Honda Motor Co., No.

83CV-08-4508 (Ohio Ct. C.P. Dec. 29, 1986)........ 18

Martinez v. Ford Motor Co., No. 87-893 CW (Fla.

Coe. Ge UE We SUE asp eeiveves ciatadaneawtaes 18

Matthews v. Chrysler Motor Corp., No. 87-P-675

8 ee er Fe et ere 17

Mazey v. General Motors Corp., No. A 243811 (Nev.

Se Ss OR I nn oS oe ccucd tadiesiaetedenas 17

McLaughlin v. General Motors Corp., No. LK-27-2

aoe Be 8 | Pere rere err Tree 18

McRoberts v. Ryals, No. 86-1630-M (Tex. Dist. Ct.

Co We SE Ns inne veevenscdvaneeedes cea cbeheaes 17

Motor Vehicle Mfrs. Ass’n of the United States, Inc. v.

State Farm Mut. Auto. Ins. Co., 463 U.S. 29

| Pe ee eee rer rr re rer err passim

a v. Nissan Corp., 650 F. Supp. 922 (E.D.N.Y.

cd EERE TET ST EE rrr i re heer 20

Nissan Motor Corp. v. Meier, No. 5040894 (Cal. Ct.

Pe ee Bs FOE 55a oak det ease riscidee ties ee 17

Nissan Motor Corp. v. Superior Court, Cal. —-

3d , 1989 Westlaw 88668 (Cal. Ct. App. May

26, We eee ee. 16

Noone v. General Motors Corp., No. 85-68704 (Tex.

a ee ee err errr aan 17

Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207

CUPS co ese ne ipl a evuseseueeseveduukesueenaenucehs 27

Palmer v. Liggett Group, Inc., 825 F.2d 620 (1st Cir.

1987), cert. denied, —_ US. _, 109 S. Ct. 838

a Pe ee eee rrr errr rere fT reer rer 14

vill

TABLE OF AUTHORITIES —- Continued

Page

Parker v. Evans, No. OCV 36391 (Cal. Super. Ct.

es ee oe Gea as eau ab aed or kee es 18

Pederson v. Ford Motor Co., No. 3AN-85-15565

(Alaska Super. Ct. Sept. 24, 1987).............+.25. 18

Pennsylvania R.R. v. Puritan Coal Mining Co., 237

Jf Gee Ro a ie te ap pi ne ane ere 27

Pennsylvania v. Nelson, 350 U.S. 497 (1956)........... 27

Perkins v. General Motors Corp., No. EAC 57623

eR ae ee | ee re 17

Phillips v. Namie, No. 85-33951-CA-07 (Fla. Cir. Ct.

ee UE hn 0 S4n 05 o One vii Sana be bney seine ese: 18

Pokorny v. Ford Motor Co., 714 F. Supp. 739 (E.D.

Pee Tere ere Tn = = Pe 16

Puzio v. General Motors Corp., No. L-07-2325-85

(N.j. Super. Ct. March 27, 1967) ......cccecvveces: 18

Ritt v. General Motors Corp., No. 86 C 1737 (N.D.

ee ee ee nn eV 60d ass dae ee ee nedeee cose 17, 20

Rodriguez v. General Motors Corp., No. CV88 3361

SVW (GX) (C.D. Cal. Oct. 4, 1988)................ 17

Ross v. Ford Motor Co., No. CV119361 (Ohio Ct.

eh UG yo ca 5b 456 a cece d ete KaNE ines; 18

San Diego Bldg. Trades Council v. Garmon, 359 U.S.

| Peer e eT CLCLen IT ET TTT ETE TT eee 13

Schick ». Chrysler Corp., 675 F. Supp. 1183 (D.S.D.

on LE ORE OTE TERED COE STEREO TET TE PEPE Se 16, 23

Schneidewind v. ANR Pipeline Co., __ U.S. ___, 108

irene BP RUE oy Sop 6 6 4-5.9-455 ooo CkaC Dae e Ra bew 13

ix

TABLE OF AUTHORITIES - Continued

Page

Schwartz v. American Honda Motor Co., Inc., 710

Pee ea so sy krack a chee eee ee 21

Schwartz v. Volvo, North America Corp., No.

CV86-7701 (Ala. Cir. Ct. Mar. 10, 1988) ........... 17

Seymour v. General Motors Corp., C.A. No. 86-2815

cmk COMED. GN. GOON 20, POU) voc occ hi daxcasciess 17

Shipp v. General Motors Corp., 750 F.2d 418 (5th Cir.

SEE 2 60a Fe OO owe Seah Ui a ORs che haces ces 21

Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1983).... 14

Smith v. Towns, No. 88CV-02-1011 (Ohio Ct. C.P.

ey ait) BE ok oo chook Peo nee Fd occa one. 17

Soboscienski v. Ford Motor Co.. No. 2NO-85-246

(Alaska Super. Ct. Oct. 28, 1986)................. 18

Sours v. General Motors Corp., 717 F.2d 1511 (6th

Cir. 1983) y

ae oe ee Oe a es oe ee oe ee me oe ar ee nt i a ie or a ie a ie ee ie ie ey

Eee es sa ee a ee 16, 18, 23

State Farm Mut. Auto. Ins. Co. v. Dole, 802 F.2d 474

(1986), cert. denied, 480 U.S. 951 (1987).......... 10

Stephen v. American Brands, Inc., 825 F.2d 312 (11th

Ra SOU oa ene ane encaa tee ee ii ie eine 14

Stonehocker v. General Motors Corp., 587 F.2d 151

Ce ee PR eo Laas SSA Boece ces oy unk eet 21

Surles v. Ford Motor Co., 709 F. Supp. 732 (N.D.

I Re ec cae Sa ce Pets eee LAS ah 16

Sutton v. Allenberg, No. 6551 (Idaho Dist. Ct. Feb.

25, 1988)

TABLE OF AUTHORITIES - Continued

T.ILM.E. Inc. v. United States, 359 U.S. 464 (1959). .... 27

Taylor v. General Motors Corp., 875 F.2d 816 (11th

oe, rer er rrr ere eee ee eke passim

Texas & Pac. Ry. v. Abilene Cotton Oil Co., 204 USS.

8 eee Cee ee eg 14, 25, 26

Vanover v. Ford Motor Co., 632 F. Supp. 1095 (E.D.

| errr eer sage eer ey ..16, 18

Vasquez v. Ford Motor Co., No. CIV 86-0657 PHX

WPC (D. Ariz. Nov. 4, 1986), motion for recon-

sideration denied, (D. Ariz. Feb. 19, 1987)........-- 17

Ventura County v. Gulf Oil Corp., 601 F.2d 1080 (9th

Cir. 1979), aff'd mem., 445 U.S. 947 (1980) .....-.-. 27

Volkswagen of America, Inc. v. Young, 272 Md. 201, *

cre te? ay. | ene eee. 21

Wattelet v. Toyota Motor Corp., 676 F. Supp. 1039 (D.

ee ef Rarer rr renee eer eke re. 16, 23

Wickstrom v. Maplewood Toyota, Inc., 416 N.W.2d

838 (Minn. App. 1987), cert. denied, US.__,

108 S. Ct. 2905 (1988) ........-- eee eee eee passim

Wolfe v. General Motors Corp., No. CV8720704

(Ohio Ct. C. P. Mar. 6, 1988)........--- eee eee eees 18

STATUTES, CODES AND REGULATIGNS

15 US.C.'@ 1361 6 S0Qe «20 e songs cnet nc ctrnies passim

1G TI BG ek os ha os nese tees chistes tine 14

ih Sole Gt | errr etree sree rcs eats ir 7 3

Oe ee RR. | Se ee 3, 12, 13, 14, 24

xi

TABLE OF AUTHORITIES - Continued

Page

SRS oe Bk 4) re ee ere ee here 1 12, 24

pi mek Take Ee: ere ree ee Sree errr. . passim

49 C.ER. § 571.208 (1981) (FMVSS 208)... ..... passim

49 C.F.R. § 571.209 (1981) (FMVSS 209) ............. 15

PS ne. Re os cha hed dntcasevcensesseeeears 8

en: a me rer rar wre 8

LEGISLATIVE AND REGULATORY History

112 Cong. Rec. 14232 ef seq. (1966). ...........2.+5.-- 19

120 Cong. Rec. 27816 et seq. (1974).............-.+..- 5

125 Cong. Rec. 36924 et seq. (1979).........-------0- 8

DE Pod. Tew, DOS CIPO. a ces cece cr ecesedeuens v4

2D Fed. Rew. SBI00 (1974)... 2 ee rence cece ener canes 6

41 Fed. Reg. 26070 (1976)... .. 0-2. eee eee 6, 7, 8

ai Fed. Rew. S6066 (1976). 3). = ak re ces cerecene< 6

<2 Pat. Hem. Dre CIS) vo eee essences’ 6

42 Fed. Reg. 28135 (1977)......... Pore Pee ere y 9

42 Fed. Reg: 34209 (1984)... 2... 5. eer ecewesccnnese 8

42 Fed. Keg. GI4G6 (ISRO) &. «oie ce nes rs ieee 8

46 Fed. Reg. 12033 (1981)........... eee en 9

£6 Fed. Rew. SO61D CIGGD). . 026 even cic es eg tncess 8, 9

WD Fad. Tae, Bee IGS ccc cs etn ecvesiinss 9, 10

x1]

TABLE OF AUTHORITIES - Continued

H.R. Rep. No. 93-1452, 93rd Cong,, 2d Sess. 44-45

CSOF OD ok vu Red cee too Nesas de Foon seo eters es

H.R. Rep. No. 1452, 93d Cong., 2d Sess., reprinted

in 1974 U.S. Code Cong. & Admin. News 6084

H.R. Rep. No. 1776, 89th Cong., 2d Sess. 17 (1966)

S. Rep. No. 1301, 89th Cong., 2d Sess., reprinted in

1966 U.S. Code Cong. & Admin. News 2709 ..

“The Secretary’s Decision Concerning Vehicle

Occupant Crash Protection”, D.O.T. (Dec. 6,

SOP eke A SHSKES ARR OS RO eee

MISCELLANEOUS

Nader & Page, Automobile Design and the Judicial

Process, 55 Calif. L. Rev. 645 (1967) ...........

Teret & Downey, Air Bag Litigation, 18 Trial (July

Eon ete bane tee eh epee eta es een

The Air Bag Goes To Court, N.Y. Times, Oct. 29,

foe OF BE, COL. Aina te cieceres verse

Page

1

No. 89-46

a

a

In The

Supreme Court of the United States

October Term, 1989

,%

bf

PATRICIA M. WOOD, et al.,

Petitioners,

GENERAL MOTORS CORPORATION,

Respondent.

,%

-_

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

a

4

INTRODUCTION

The First Circuit held that federal law preempts peti-

tioner’s common-law claim that a 1976 vehicle is defec-

tive because it was equipped with one restraint system

option granted by federal law, seat belts, not a different

option, airbags. Petitioner seeks review of that decision.

Just last term, a petition was filed seeking review of

an identical holding of the Minnesota Court of Appeals,

the first appellate court to address the issue, and this

Court declined to review it. Wickstrom v. Maplewood

Toyota, Inc., 416 N.W.2d 838 (Minn. Ct. App. 1987), cert.

denied, _ _ U.S. __, 108 S. Ct. 2905 (1988). Since then, five

more appellate courts (including two other federal circuit

courts) — that is every federal and state appellate court to

address the issue — also have held airbag claims pre-

empted. Some forty trial courts, federal and state, are in

accord. They are plainly right, under settled principles

laid down by this Court.

There is virtual unanimity here, no conflict, and no

reason to review this decision. The petition should be

denied.

,

i

STATEMENT OF THE CASE

I. PETITIONER’S CLAIM.

Petitioner was riding in a 1976 Blazer, a multipurpose

passenger vehicle, sharing the passenger seat with a

friend, when the driver drove into a tree. Petitioner was

not wearing her seat belt and was seriously injured. The

belt system fully met the requirements of the applicable

federal regulation, Federal Motor Vehicle Safety Standard

208 (“FMVSS 208”).

Petitioner brought this action against General Motors

Corporation, alleging that the Blazer was defective

because it was equipped with seat belts, not airbags.’

1 Petitioner’s complaint refers to airbags. However, peti-

tioner sometimes referred to passive restraints (airbags or

automatic belts) in the Court of Appeal, and does so here as

well. We refer to petitioner’s claim as an airbag claim. The

same preemption analysis applies to an automatic belt claim, if

made.

Il. THE SAFETY ACT.

In 1966 Congress determined that, given the “central-

ized, mass production, high volume character of the

motor vehicle manufacturing industry in the United

States,” the country needed motor vehicle safety stan-

dards that were “strong and adequately enforced,” and

“uniform throughout the country.” S. Rep. No. 1301, 89th

Cong., 2d Sess., reprinted in 1966 U.S. Code Cong. &

Admin. News 2709, 2720; see H.R. Rep. No. 1776, 89th

Cong., 2d Sess. 17 (1966) (emphasis added). Therefore it

concluded that “the primary responsibility for regulating

the national automotive manufacturing industry must fall

squarely upon the Federal Government.” S. Rep. No.

1301, 89th Cong., 2d Sess., reprinted in 1966 U.S. Code

Cong. & Admin. News 2709, 2712; (App., pp. 5a-6a).

Accordingly, Congress enacted the National Traffic

and Motor Vehicle Safety Act, 15 U.S.C. § 1381 et seq.

(“Safety Act”). The Safety Act directs the Department of

Transportation and its subdivision, the National Highway

Traffic Safety Administration (“NHTSA”), to issue federal

motor vehicle safety standards that are “practicable,”

“meet the need for motor vehicle safety,” and apply

throughout the country. 15 U.S.C. § 1392(a). The “task

called for considerable expertise.” Motor Vehicle Mfrs.

Ass'n of the United States, Inc. v. State Farm Mut. Auto. Ins.

Co. (“State Farm”), 463 U.S. 29, 33 (1983).

“Whenever” the Department establishes a federal

standard, the Safety Act expressly preempts state safety

standards as to “the same aspect of performance” not

“identical to the Federal standard.” 15 U.S.C. § 1392(d).

The Safety Act also provides that compliance with a

Federal Standard “does not exempt any person from any

liability under common law.” 15 U.S.C. § 1397(c). That

general “savings clause” does not purport to save claims

based on a nonidentical common law standard that

directly conflicts with a federal standard. (See pp. 25-27,

below.)

III. FMVSS 208.

The Department of Transportation first adopted

FMVSS 208, the occupant restraint standard, in 1967. It

required installation of manual lap belts in all new cars.

32 Fed. Reg. 2415 (1967).

A. 1972-1975: Congress Prohibits Any Standard

Mandating Airbags Unless Submitted To And

Not Disapproved By It.

“The safety benefits of wearing seat belts are not in

doubt... .” State Farm, 463 U.S. at 52. However, manual

seat belts are “active restraints,” because the occupant

must act to use them, and after original FMVSS 208

issued, many people did not use them. Therefore, in 1972

the Department amended FMVSS 208 prospectively to

require installation of airbags or automatic seat belts in

all cars built after August 15, 1975. Airbags or automatic

seat belts are “passive restraints,”

automatically.

because they work

At the same time, the Department required “vehicles

built between August 1973 and August 1975... to carry

either passive restraints or [manual] lap and shoulder

belts coupled with an ‘ignition interlock’ that would pre-

vent starting the vehicle if the belts were not connected.”

State Farm, 463 U.S. at 35.

There was a public outcry against ignition interlocks,

and in 1974 Congress outlawed the “ignition interlock”

standard. It also prohibited the Secretary of Transporta-

tion from requiring airbags or any other nonbelt restraint

system unless, among other things, such a standard had

been submitted first to both houses of Congress and not

disapproved by them. 15 U.S.C. §§ 1410b(b), 1410b(c).

Congress authorized a standard permitting manufac-

turers to install nonbelt restraint systems, but only if the

standard also permitted the manufacturers to install man-

ual belt systems instead. 15 U.S.C. § 1410b(b)(3)(A).?

Congress’ purpose, and § 1410b’s effect, are clear: (1)

Neither motorist nor manufacturer is to be required to

buy or install “anything more than” manual seat belts

and a warning signal, because more was “not justified.”

120 Cong. Rec. 27816, 27822 (1974) (remarks-of Represen-

tative Wyman, the author of the amendment that became

§ 1410b). (2) The Secretary is therefore to permit the

manufacturer the option to install manual seat belts. (3)

The Secretary “could permit a manufacturer (at his

option) to comply with a standard with a nonbelt system

instead of a belt system.” H.R. Rep. No. 1452, 93d Cong.,

2d Sess., reprinted in 1974 U.S. Code Cong. & Admin.

News 6084, 6108. But (4) the Secretary could not take

2 A “belt system” under the Act is a manual belt system.

See H.R. Rep. No. 93-1452, 93rd Cong., 2d Sess. 44-45 (1974);

120 Cong. Rec. 27816, 27882 (1974).

away the manufacturer’s option to install manual seat

belts without Congress’ assent.?

B. The Options.

Accordingly, on October 31, 1974 the Secretary

amended FMVSS 208 to delete the ignition interlock

requirements. 39 Fed. Reg. 38380 (1974). As amended,

FMVSS 208 granted manufacturers the option to install

one of three restraint systems: (1) passive restraints for

front and lateral crashes; (2) passive restraints for front

crashes plus lap belts for side crashes and rollovers; or (3)

manual seat belts. Those were the same three options

FMVSS 208 provided before the ignition interlock epi-

sode. Thereafter, FMVSS 208 granted those same “three

options,” 41 Fed. Reg. 36494 (1976), and rejected a man-

datory airbag rule, in every model year from 1976-1981.

C. 1976-1981: Transportation Secretaries Reject

Mandatory Airbags.

1. 1976: Secretary Coleman

Secretary Coleman undertook a comprehensive study

of passive restraints. He determined not to mandate

them, and instead reaffirmed the manufacturer’s

“option” to install manual belts. 41 Fed. Reg. 24070, 36494

(1976); 42 Fed. Reg. 5071 (1977). The reasons were these:

3 Even if the legislative veto aspect of § 1410b fails (see

I.N.S. v. Chadha, 462 U.S. 919 (1983)), Congress’ intent in enact-

ing § 1410b is clear.

a. Public Acceptance. A policy “unacceptable” to

the public would be contrary to the “goal of safety,” and

“every sampling of public opinion” showed most Ameri-

cans did not want mandatory passive restraints. The Sec-

retary’s Decision Concerning Vehicle Occupant Crash

Protection, D.O.T., Dec. 6, 1976, pp. 6, 11, 32, 52-57 (“Sec-

retary’s Decision”).

b. Development of Technology and Data. It was

important to “foster the continued development of pas-

Sive restraint technology” and obtain more data before

mandating them or any one of them. Secretary’s Decision,

pp. 9, 12, 27, M4; 372

c. Increased Manual Belt Use. It was likewise

important to develop better manual seat belts. Secretary’s

Decision, p. 29. Education might increase manual belt use

and so make passive restraints unnecessary; airbags pro-

vided no greater protection than seat belts, when used.

Secretary’s Decision, pp. 7, 13, 29, 33.

d. Disastrous Economic Consequences. Mandating

passive restraints would, if the public rejected them,

cause “disastrous economic consequences for the entire

nation.” Secretary’s Decision, pp. 6, 7, 11.

Secretary Coleman concluded that the “cause of

safety would not be served” by mandating airbags or any

passive restraints. Secretary’s Decision, pp. 27, 30-31, 34,

4 The Secretary was particularly concerned about the “fea-

sibility of manufacturing millions” of reliable passive

restraints. 41 Fed. Reg at 24072.

36; see also 41 Fed. Reg. 24070-71 (1976).5 The 1976 Blazer

at issue in this case was built in August 1976, during the

Coleman years.

2. 1977-81: Secretary Adams

Secretary Adams rejected an airbag-only standard

again in 1977. He did issue a prospective FMVSS 208

requiring passive restraints to be phased into automobiles

beginning in 1981, but was clear that “a lead time of four

full years should precede the [phase-in] requirement.” 42

Fed. Reg. at 34295. Therefore he determined that passive

restraints ought not be mandated, and the option to

choose manual belts ought to stay in place, until the

phase-in began, for the same reasons Secretary Coleman

cited: public acceptance, development of technology, and

the need for additional data. 42 Fed. Reg. at 34290-96,

61468; 46 Fed. Reg. at 53420.

> Secretary Coleman planned a demonstration project to

help answer the consumer acceptance question. Secretary's

Decision, pp. 6-9, 30-33. The program was cancelled by his

successor. See State Farm, 463 U.S. at 37.

6 Secretary Adams’ prospective mandatory passive

restraint regulation was submitted to Congress and not disap-

proved by it. But Congress provided in the Department of

Transportation’s annual appropriation legislation for 1979 and

1980 that “[nJone of the funds appropriated under this Act

shall be used to implement or enforce any standard or regula-

tion which requires any motor vehicle to be equipped with an

occupant restraint system (other than a belt system).” 92 Stat.

450 (1978); 93 Stat. 1039 (1979). “Belt System” meant the “active

restraint system, which is the lap-shoulder belt system that we

have on cars today.” 125 Cong. Rec. 36924-25 (1979).

The phase-in did not apply at all to multipurpose

passenger vehicles, like the Blazer here; as to them, Secre-

tary Adams’ standard continued to grant the manual seat

belt option indefinitely. 42 Fed. Reg. 28135-36 (1977).

D. 1981-1989: The Final Decision.

1. 1981: Secretary Lewis.

In 1981, Secretary Lewis delayed Secretary Adams’

phase-in, and then rescinded it. He concluded that manu-

facturers should “continue to have the current option” to

provide seat belts, and reaffirmed it. 46 Fed. Reg.

12033-36, 53419 (1981). This Court reviewed that rescis-

sion decision and remanded it, holding that Secretary

Lewis had not adequately set forth the reasons for it. State

Farm, above, at 57.

2. 1984: Secretary Dole.

Upon remand, Secretary Dole undertook a compre-

hensive review of all restraint systems, 49 Fed. Reg.

28962-63, 28991, 28996 (1984), and reached a “final deci-

sion” respecting passive restraints. She determined that

greater manual seat belt use, not any form of passive

restraint, was the “quickest, least expensive way by far to

significantly reduce fatalities and injuries.” 49 Fed. Reg.

at 28997. Therefore, she mandated a phase-in of passive

restraints, but provided that the phase-in was not to

begin until 1987, and was not to begin at all if states with

two-thirds of the population enacted mandatory use laws

(“MULs”) by then. She further provided that the phase-in

10

was to cease after it began if sufficient states enacted

MULs between 1987 and 1989.

Secretary Dole determined not to mandate airbags or

any other particular passive restraint before, during or

after the phase-in. She found “a number of reasons” not

to require airbags in particular, including these: (1) “An

airbag alone is less effective” than three-point seat belts

when used, 49 Fed. Reg. at 28986; (2) airbags are costly,

and are especially costly to replace, id. at 29001; (3) air-

bags may not protect out-of-place occupants and, in fact,

might cause injuries, especially to children, id. at 28992,

29001; and (4) the public fears airbags and may not accept

them. Id. at 29001. The Secretary concluded that no one

system should be mandated because “by restricting the

manufacturers, the Department runs the risk of killing or

seriously retarding development of more effective, effi-

cient occupant protection systems.” Id. at 29001.

Secretary Dole’s FMVSS 208 was challenged, the

challenge to it was dismissed, State Farm Mut. Auto. Ins.

Co. v. Dole, 802 F.2d 474 (1986), cert. denied, 480 U.S. 951

(1987), and it is the FMVSS 208 in effect today.”? From

1984-1987, it granted the same option to install manual

seat belts that its predecessors did. The passive restraint

phase-in it called for began in 1987, because sufficient

states had not enacted MULs by then. In the upcoming

model year (1990), it will require passive restraints in all

passenger cars, but grants the manufacturer the option as

to what passive restraint to install.

7 With minor modifications.

11

As to multipurpose passenger vehicles, like the

Blazer here, the phase-in did not apply at all, and FMVSS

208 continues to grant the same three options as to them -

specifically including manual seat belts — it has granted

since before Secretary Coleman’s years. 49 C.F.R.

§ 571.208, S4.2.2.

Summary. FMVSS 208 has never required airbags, and

from the beginning up to Secretary Dole’s final decision

and the phase-in called for by it, the FMVSS 208 in effect

in each year has granted manufacturers the option to

install manual seat belts in all cars built in that year. As of

today, it grants that option in respect to multipurpose

passenger vehicles.

y

cg

REASONS FOR DENYING THE WRIT

I. THE FIRST CIRCUIT’S DECISION FOLLOWS SET-

TLED LAW.

Petitioner charges that Judge Campbell’s opinion for

the Court reflects an “unprincipled use of the implied

preemption doctrine,” and so is an “open invitation to the

wholesale displacement of state law by activist federal

judges.” (Petitioner’s Brief [“Pet.”], p. 16) Actually, the

opinion reflects a careful, scholarly application of settled

implied preemption principles,.and enjoys the virtually

unanimous approval of federal judges across the land.

(See II, below.)§

Thus, the First Circuit began with the undisputed

rule that “preemption is a matter of Congressional

5 It is petitioner who invites “activism.” The organization

that represents her, Trial Lawyers for Public Justice, was

(Continued on following page)

12

intent.” (Appendix to Petition for Certiorari [“App.”], pp.

12a-13a) It found that neither § 1392(d) - which preempts

nonidentical state standards - nor § 1397(c) — the so-

called savings clause - expressly set forth Congress’

intent in respect to the problem before it. (App., pp.

6a-7a, 13a, 24a, 27a) Therefore, it looked to “the goals and

policies of the Act,” as settled law required it to do.

(App., p. 27a (quoting International Paper Co. v. Ouellette,

479 U.S. 481, 493 (1987)) It concluded that Congress

“believed that for the federal standards to be effective,

they had to be uniform throughout the country,” and that

“Congress thus intended that all of the FMVSS, including

FMVSS 208, be uniform national standards.” (App., p.

38a)

FMVSS 208 authorizes vehicles to be equipped with

manual seat belts, not passive restraints. (App., pp. 14a,

29a) A state regulation requiring all vehicles to be

equipped with passive restraints would, therefore, take

away the option FMVSS 208 grants, would not be identi-

cal to it, and instead would conflict with it. It would also

(Continued from previous page)

formed to bypass Congress’ regulatory plan, and reopen in the

courts the mandatory airbag issue the Department resolved.

See, e.g., Teret & Downey, Air Bag Litigation, 18 Trial, July 1982

at 93. As explained in the article entitled The Air Bag Goes To

Court, N.Y. Times, Oct. 29, 1984, § D at 1, col. 4:

[A] small group of trial lawyers from around the

nation has quietly developed a new strategy that

they hope will move the airbag question out of the

regulatory agencies and into the courts... . “We are

trying to use economic pressure to force them to

offer airbags,” said Joan Claybrook, . . . one of the

leading forces behind the campaign [and a founder

of Trial Lawyers for Public Justice].

13

effect nonuniformity; indeed, it would create a patchwork

— even a crazy quilt - of different restraint standards

across the country. (pp. 18-19, below). Accordingly,

§ 1392(d) would expressly preempt it (App., pp. 31a-32a);

no one disputes that.

Petitioner’s common-law claim, if allowed, would be

“tantamount to establishing” such a “conflicting” state

regulation (App., pp 14a, 16a), and have essentially the

same “effect.” (App., pp. 32a-37a) For it “would likewise

destroy the national uniformity of the federal standard

and exceed the state’s authority.” (App., p. 38a)?

Therefore, the First Circuit reasoned, that state com-

mon-law claim, if allowed, would “interfer[e] with the

method by which Congress intended to meet” its goal.

(App., pp. 28a-29a (following and quoting Ouellette, above))

Accordingly, that claim presents an “actual” and “direct

conflict” with the Safety Act and “stands as an obstacle

to” it. (App., pp. 27a-28a, 38a-39a, 40a-41a (following and

quoting Schneidewind v. ANR Pipeline Co., ___ U.S. ___, 108

S. Ct. 1145, 1151 (1988), in turn quoting Hines v.

Davidowitz, 312 U.S. 52, 67 (1941)). Consequently, “Con-

gress’s purposes .. . plainly imply a preemptive intent”

9 State law damage claims plainly have a regulatory effect.

San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 246-47

(1959) (“The obligation to pay compensation can be, indeed is

designed to be, a potent method of governing conduct and

controlling policy”); Ouellette, 479 U.S. at 498 n.19 (state com-

mon-law suit, if allowed, would “compel” water discharger not

to do what federal law permits). (App. 32a-33a) Petitioner does

not address these authorities, but does agree that common-law

damage actions “alter future conduct by the incentives they

create.” (Pet., p. 17)

14

as to that claim (App., p. 16a), and so it is, necessarily,

“impliedly preempted.” (App., pp. 38a-39a)!°

That unimpeachable analysis is not an “open invita-

tion” to do anything but follow settled law. Nor is it

“open” in respect to the Safety Act. Safety Act standards

are, in general, performance standards (App., p. 47a; 15

U.S.C. § 1391(2)), and the “usual common law action for

design defect” “creates a design standard rather than a

performance standard.” (App., p. 47a) Therefore, a

“direct conflict between a common law design standard

and a Safety Act performance standard” is “a rare event

indeed.” (App., p. 15a n.9) But § 1410b, unique in the

Safety Act, speaks to restraint systems - a design.

10 Petitioner points to Silkwood v. Kerr-McGee Corp., 464

U.S. 238 (1983), but there was no conflict, much less direct,

between any applicable federal standard and the state stan-

dard there. (See App., pp. 34a-37a, 40a-41a) Petitioner also

complains that Congress was “well aware” that the FMVSSs

“would not provide for victim compensation.” (Pet., p. 17) But

Congress expressly permitted states to enforce FMVSSs

(§ 1392(d)), and no one contends that a state could not provide

a tort action for failure to comply with one. Petitioner adds

that Congress “traditionally preempts direct regulation and

preserves common law claims” (Pet., p. 18) —- but not when the

common-law claim directly conflicts with a federal law or

regulation. See, e.g., Abilene, above; Chicago & N.W. Transp. Co.

v. Kalo Brick & Tile Co., 450 U.S. 311 (1981); Ouellette, above;

Palmer v. Liggett Group, Inc., 825 F.2d 620 (1st Cir. 1987), cert.

denied, __ U.S. __, 109 S. Ct. 838 (1989); Cippolone v. Liggett

Group, Inc., 789 F.2d 181 (3d Cir. 1986), cert. denied, 479 U.S.

1043 (1987); Stephen v. American Brands, Inc., 825 F 2d 312 (11th

Cir. 1987).

15

Moreover, FMVSS 208,11 issued under § 1410b, sets forth

detailed design requirements with respect to seat belt

restraint systems. Accordingly, FMVSS 208 “has elements

of a design standard.” (App., p. 48a)

FMVSS 208 is unique for that reason (and others, pp.

19-20, below). In part because it is unique, and in part

because “airbag suits are of the broadest general appli-

cability — potentially affecting every vehicle on the road,”

this is the “rare” and “narrow” claim which, if allowed,

would both establish “what is in practical effect a new

safety standard” and create “a direct conflict” with the

federal standard. (App., pp. 15a, 24a, 40a, 50a-51a) That is

also why it is plainly preempted.

Petitioner says nothing about any of that.

Il. THE FIRST CIRCUIT’S DECISION DOES NOT

CONFLICT WITH THE HOLDING OF ANY

OTHER CIRCUIT OR STATE COURT OF LAST

RESORT.

Petitioner claims that the First Circuit’s decision

“conflicts with the decisions of other circuits and state

courts of last resort.” (Pet., p. 9) In fact, every appellate

court in the country to address the airbag preemption

issue agrees with the First Circuit, including the Wick-

strom court; this Court declined to review Wickstrom last

year.

As to Petitioner’s cases, they do not concern FMVSS

208, or airbags, or federally granted design options that

state law would prohibit, or, in most cases, preemption.

11 Together with FMVSS 209. 49 C.F.R. § 571.209.

16

A. The State and Federal Courts Have Unani-

mously Held Airbag Claims Preempted.

In addition to this case, five appellate courts — two

other federal and three state - have addressed the airbag

preemption issue.-All have held airbag claims preempted.

Kitts v. General Motors Corp., 875 F.2d 787 (10th Cir. 1989);

Taylor v. General Motors Corp., 875 F.2d 816 (11th Cir.

1989); Nissan Motor Corp. v. Superior Court, __ Cal. App.

3d ___, 1989 Westlaw 88668 (Cal. Ct. App. May 26, 1989);

Gardner v. Honda Motor Co., 536 N.Y.S.2d 303 (N.Y. App.

Div.), appeal dismissed, 543 N.Y.S.2d 401 (1988); Wickstrom

v. Maplewood Toyota, Inc., 416 N.W.2d 838 (Minn. Ct. App.

1987), cert. denied, __ U.S. __, 108 S. Ct. 2905 (1988). A

host of trial courts across the country agree. See, e.g.,

Pokorny v. Ford Motor Co., 714 F. Supp. 739 (E.D. Pa. 1989);

Surles v. Ford Motor Co., 709 F. Supp. 732 (N.D. Tex. 1988);

Kolbeck v. General Motors Corp., 702 F. Supp. 532 (E.D. Pa.

1988); Staggs v. Chrysler Corp., 678 F. Supp. 270 (N.D. Ga.

1987); Hughes v. Ford Motor Co., 677 F. Supp. 76 (D. Conn.

1987); Wattelet v. Toyota Motor Corp., 676 F. Supp. 1039 (D.

Mont. 1987); Schick v. Chrysler Corp., 675 F. Supp. 1183

(D.S.D. 1987); Baird v. General Motors Corp., 654 F. Supp.

28 (N.D. Ohio 1986); Cox v. Baltimore County, 646 F. Supp.

761 (D. Md. 1986); Vanover v. Ford Motor Co., 632 F. Supp.

1095 (E.D. Mo. 1986); Heftel v. General Motors Corp., 1988

Westlaw 19615 (D.D.C. Feb. 23, 1988); Hunter v. General

Motors Corp., Prod. Liab. Rep. (CCH) 4 12,039 (D. Conn.

17

Dec. 27, 1988); Howard v. American Motors Corp., Prod.

Liab. Rep. (CCH) 7 11,955 (S.D. Tex. July 6, 1988).12

12 In addition to the published decisions, dozens of

unpublished decisions hold airbag claims preempted. See, e.g.,

Hunt v. Ford Motor Co., Inc., No. 88-AR-1756 (N.D. Ala. March

30, 1989); Falk v. Chrysler Corp., No. R-87-1057 (D.C. Md. Feb.

24, 1989); Vasquez v. Ford Motor Co., No. CIV 86-0657 PHX WPC

(D. Ariz. Nov. 4, 1986), motion for reconsideration denied, (D.

Ariz. Feb. 19, 1987); Donnelly v. General Motors Corp., No.

86-576-JU (D. Or. Aug. 3, 1987); Kane v. Mitsubishi Motor Sales of

America Inc., No. 9649/88 (N.Y. Sup. Ct. June 19, 1989); Nissan

Motor Corp. v. Meier, No. 5040894 (Cal. Ct. App. May 26, 1989);

Gingold v. Audi-NSU-Auto Union AG, No. 6155 (Pa. Ct. C.P. May

12, 1988); Groves v. Chrysler, No. 84-7-302 (Or. Cir. Ct. March 15,

1988); Little v. Chrysler, No. 84-11-103 (Or. Cir. Ct. March 15,

1988); Sutton v. Allenberg, No. 6551 (Idaho Dist. Ct. Feb. 25,

1988); Schwartz v. Volvo, North America Corp., No. CV86-7701

(Ala. Cir. Ct. Mar. 10, 1988) aff'd on other grounds, (Ala. Sup. Ct.

July 28, 1989); Matthews v. Chrysler Motor Corp., No. 87-P-675

(Ohio Ct. C.P. Jan. 9, 1989); Bass v. General Motors Corp., No.

SA-86-CA-279 (W.D. Tex. Sept. 14, 1987) (adopting and modify-

ing Magistrate’s Decision of July 24, 1987); Rodriguez v. General

Motors Corp., No. CV88 3361 SVW (GX) (C.D. Cal. Oct. 4, 1988);

Ritt v. General Motors Corp., No. 86 C 1737 (N.D. Ill. Jan. 20,

1988); Distler v. General Motors Corp., Civ. No. 4-86-821 (D.

Minn. Sept. 8, 1987); Noone v. General Motors Corp., No.

85-68704 (Tex. Dist. Ct. Jan. 24, 1989); McRoberts v. Ryals, No.

86-1630-M (Tex. Dist. Ct. Oct. 13, 1988); Garman v. Mazda Motor

Corp., No. 85-13839-F (Tex. Dist. Ct. April 6, 1988); Davis v.

Whitworth, No. 86-125-199 (Tex. Dist. Ct. July 19, 1988); Perkins

v. General Motors Corp., No. EAC 57623 (Cal. Super. Ct. Oct. 19,

1988); Smith v. Towns, No. 88CV-02-1011 (Ohio Ct. C.P. Oct. 24,

1988); Hill v. Oakland County Road Comm’n, No. 88-344327 NP

(Mich. Cir. Ct. Nov. 9, 1988); Seymour v. General Motors Corp.,

C.A. No. 86-2815 (R.I. Super. Ct. Sept. 26, 1988); Mazey v.

General Motors Corp., No. A 243811 (Nev. Dist. Ct. Dec. 6, 1988);

(Continued on following page)

18

That authority is certainly right. It holds, as, for

example, Wood, Kitts and Wickstrom do, that Congress’

purpose to ensure uniform national standards “would be

entirely frustrated by permitting individual states to

adopt tort rules which would permit liability to be

imposed upon manufacturers because of the absence of

airbags.” See, e.g., Cox, above, 646 F. Supp. at 763-64. For

if states were free to do that, the upshot would be a

patchwork of different restraint standards in different

states, and perhaps different standards set by different

juries in the same state. The possibilities are kalei-

doscopic: four-point belts here, three-point belts there,

frontal airbags somewhere else, automatic belts still

somewhere else. And so on, as juries saw fit on the basis

of whatever was before them from time to time. That

“type of ad hoc regulation is exactly what Congress

sought to exclude. . . .” See, e.g., Vanover, above, 632 F.

Supp. at 1096; Kitts, 875 F.2d at 789; Wickstrom, 416 N.W.2d

at 841; Staggs, 678 F. Supp. at 272; Hughes, 677 F. Supp. at

(Continued from previous page)

Mackey v. American Honda Motor Co., No. 83CV-08-4508 (Ohio

Ct. C.P. Dec. 29, 1986); Parker v. Evans, No. OCV 36391 (Cal.

Super. Ct. June 10, 1988); McLaughlin v. General Motors Corp.,

No. LK-27-2 (Va. Cir. Ct. May 16, 1988); Martinez v. Ford Motor

Co., No. 87-893 CW (Fla. Cir. Ct. Aug. 15, 1988); Aronowitz v.

General Motors Corp., Index No. 23118/84 (N.Y. Sup. Ct. Mar.

18, 1988); Wolfe v. General Motors Corp., No. CV8720704 (Ohio

Ct. C. P. Mar. 6, 1988); Pederson v. Ford Motor Co., No.

3AN-85-15565 (Alaska Super. Ct. Sept. 24, 1987); Ross v. Ford

Motor Co., No. CV119361 (Ohio Ct. C.P. May 5, 1987); Puzio v.

General Motors Corp., No. L-07-2325-85 (N.J. Super. Ct. March

27, 1987); Soboscienski v. Ford Motor Co., No. 2NO-85-246

(Alaska Super. Ct. Oct. 28, 1986); Phillips v. Namie, No.

85-33951-CA-07 (Fla. Cir. Ct. Sept. 22, 1986).

19

77-78; Cox, 646 F. Supp. at 763-64; Howard, Prod. Liab.

Rep. ¥ 11,955, at 34,525.19

That authority also holds, as, for example, Taylor and

Wickstrom do, that FMVSS 208 gave manufacturers the

option to meet its requirements by choosing any of the

three restraint systems sanctioned by it. FMVSS 208

granted that option and the flexibility that goes with it

for good and affirmative reasons; that option and its

history are unique to FMVSS 208. (pp. 14-15, above) A

state rule that in effect required manufacturers to install

airbags would take away the manufacturers’ option to

choose to install manual seat belts, not airbags. Therefore,

it would defeat Congress’ and the Department’s purposes

for granting that option. A state rule imposing damages

upon a manufacturer for installing seat belts, not airbags,

would also punish the manufacturer, after the fact, for

doing what federal law authorized it to do.

Therefore, that rule is preempted. For “a state com-

mon law rule [like this one] that would, in effect, remcve

the element of choice authorized in [FMVSS] 208 would

frustrate the federal regulatory scheme.” Taylor, 875 F.2d

at 827. Indeed, it is black letter law that a “state common

law rule cannot take away the flexibility provided by a

federal regulation,” “cannot prohibit the exercise of a

federally granted option,” and cannot impose damages

for doing “what a federal act or regulation ‘authorized

13 Congress was clear that “50 states cannot individually

set standards for the automobiles that come into those 50 states

from a mass production industry,” 112 Cong. Rec. 14232 (1966),

for, as the President said, that would be “chaotic.” 112 Cong.

Rec. 14253.

20

[one] to do.’ ” Id. See Fidelity Fed. Sav. & Loan Ass‘n v. de la ©

Cuesta, 458 U.S. 141, 155 (1982); Kalo Brick, 450 U.S. at 318;

Wickstrom, above, 416 N.W.2d at 841; Baird, 654 F. Supp. at

33; Cox, 646 F. Supp. at 763-64; Heftel, 1988 Westlaw 19615,

at 3.

Petitioner ignores that wealth of authority and the

reasons for it, and indeed does not cite a single contrary

airbag decision.'4 There is virtual uniformity — perhaps

unprecedented uniformity — not conflict, here.

B. Petitioner’s Cases Are Not On Point, Much Less

Contrary. -

Petitioner cites thirteen cases that, she says, conflict

with this unanimous authority. But they do not. None

concerns airbags; or FMVSS 208; or 15 U.S.C. § 1410b; or

an equipment requirement advanced by plaintiff that

NHTSA specifically rejected; or the imposition of liability

for exercising an option NHTSA specifically granted; or,

14 Murphy v. Nissan Corp., 650 F. Supp. 922 (E.D.N.Y. 1987)

(not cited by petitioner), is on analysis a reclining seat, not

passive restraint, case. Garrett v. Ford Motor Co., 684 F. Supp.

407 (D. Md. 1987) (also not cited by petitioner), is a rear seat

belt, not passive restraint, case. Petitioner quarrels that Taylor

rejects Wood (Pet., p. 12), but that is false. Taylor agrees with

Wood's conclusion that the Safety Act neither expressly pre-

empts nor saves petitioner’s claim, and follows Wood’s holding

with respect to the savings clause. 875 F.2d at 825 n.18, 827-28

n.20. Petitioner also notes that General Motors settled Ritt v.

General Motors (Pet., pp. 12-13); true —- the parties were able to

settle Ritt after three Circuits had ruled in favor of General

Motors.

21

as the First Circuit put it, “implied preemption of a state

law cause of action that would effectively create a state

standard” that directly conflicts with a federal standard.

(App., p. 49a)

Indeed, eight do not concern preemption at all, and

do not mention it. As the First Circuit explains and peti-

tioner concedes, they merely hold that compliance with

federal safety standards is relevant (not conclusive) to

show that an automobile is not defective as a matter of

state law. We agree. But that has to do with the merits of

the state law cause of action, and is “entirely different”

from preemption and the issue at hand; the First Circuit

expressly had “no quarrel with [its] sister circuits’ hold-

ings that compliance with a FMVSS is not a defense on

the merits to a claim of design defect.” (App., pp.

49a-50a) See Knippen v. Ford Motor Co., 546 F.2d 993, 1000

(D.C. Cir. 1976); Shipp v. General Motors Corp., 750 F.2d

418, 421 (5th Cir. 1985); Stonehocker v. General Motors

Corp., 587 F.2d 151, 156-57 (4th Cir. 1978); Schwartz v.

American Honda Motor Co., Inc., 710 F.2d 378, 383 (7th Cir.

1983); General Motors Corp. v. Edwards, 482 So.2d 1176,

1188 (Ala. 1985); Fox v. Ford Motor Co., 575 F.2d 774, 785

(10th Cir. 1978)15; Volkswagen of America, Inc. v. Young, 272

Md. 201, 321 A.2d 737, 746 (1974); H.P. Hood & Sons, Inc. v.

Ford Motor Co., 370 Mass. 69, 345 N.E.2d 683, 688 (1976).

15 The Tenth Circuit plainly saw no inconsistency between

Fox’s holding on compliance as a defense on the merits, and its

holding in Kitts that airbag claims are preempted. Moreover, in

Fox the “main thrust” was that the rear seat belts were at the

wrong angle under the applicable federal standard. 575 F.2d at

778.

22

As to the remaining five, none involves claims based

on standards inconsistent with an FMVSS, much less

standards that “directly conflict” with the applicable

FMVSS. They merely hold, at most, that the Safety Act

does not occupy the field, and so permits claims based on

common-law standards that do not conflict with an

FMVSS.'6 Larsen v. General Motors Corp., 391 F.2d 495 (8th

Cir. 1968) (no federal standard governed challenged

steering system design); Dawson v. Chrysler Corp., 630 F.2d

950, 957-58 (3d Cir. 1980), cert. denied, 450 U.S. 959 (1981)

(no federal standard governed frame strength-and rigid-

ity); Dorsey v. Honda Motor Co., 655 F.2d 650, 654, 656 (5th

Cir. 1981), cert. denied, 459 U.S. 880 (1982) (vehicle met

“certain federal” standards, but the standards were

“unrelated to several of the design deficiencies” chal-

lenged); Sours v. General Motors Corp., 717 F.2d 1511 (6th

Cir. 1983) (no federal roof standard established at time

car was designed); Arbet v. Gussarson, 66 Wis.2d 551, 225

N.W.2d 431, 438 (1975) (no federal standard governed gas

tank design). That is plainly true, but not the issue here.

This case involves a purported common-law standard

that “directly conflicts” with the applicable federal stan-

dard, and would have “the broadest general applicability

— potentially affecting every vehicle on the road.” (App.,

pp. 50a-51a) Therefore, if allowed, it would “destroy the

‘6 Of course, claims that do not directly conflict are not

affected by the First Circuit’s ruling and only the “rare” claim

will conflict. Thus, design claims ordinarily will not conflict

with any FMVSS, since, among other things, FMVSSs are per-

formance standards. (pp. 14-15, below) Manufacturing defects

claims will never conflict, so all such claims — including claims

in respect to alleged defects in the passenger restraint system

itself — survive.

23

national uniformity” Congress intended, and frustrate the

statutory scheme. (App., p. 38a) Accordingly, it “stands as

an obstacle” to that scheme, and is impliedly preempted

under settled preemption law. (App., pp. 29a, 38a-39a)

Petitioner’s cases have nothing to do with a problem like

that. Indeed, as Wood observed, “the issue of implied

preemption was never argued or addressed” in any of

them. (App., p. 51a)

There is no conflict to resolve. Accord Taylor, 875 F.2d

at 827-28; Kitts, 875 F.2d at 789; Wickstrom, 416 N.W.2d at

841; Gardner, 536 N.Y.S.2d at 306-07; Staggs, 678 F. Supp.

at 272-73; Hughes, 677 F. Supp. at 77-78; Wattelet, 676 F.

Supp. at 1041; Schick, 675 F. Supp. at 1186; Baird, 654 F.

Supp. at 33; Cox, 646 F Supp. at 763-64; Heftel, 1988

Westlaw 19615, at 3; Howard, Prod. Liab. Rep. J 11,955, at

34,525.

Ill. THE FIRST CIRCUIT’S IMPLIED PREEMPTION

DECISION DID NOT TURN ON THE ISSUE

THAT PETITIONER COMPLAINS ABOUT.

Petitioner complains that the First Circuit was wrong

44

in finding that defective design actions were “an

unpromising and, for that reason, virtually nonexistent

breed in 1966,” so that the 1966 Congress did not “con-

template the likelihood that there would be a state tort

action that would effectively create a state design stan-

dard conflicting with a federal safety standard.” (App.,

pp. 19a, 21a; Pet., pp. 5-7, 13-17) The First Circuit had

good reason to so find. Indeed, Ralph Nader, whose

testimony petitioner says alerted Congress to the

24

existence of design defect litigation,” complained in 1967

that “[w]hile a number of suits involving unsafe design

have been settled, plaintiffs have had little luck on the

trial court level. On appeals, plaintiffs are batting zero.”

Nader & Page, Automobile Design and the Judicial Process,

55 Calif. L. Rev. 645, 645-46 (1967).

But, whether right or wrong, the First Circuit’s view

of the state of design-defect litigation in 1966 was not the

basis for its resolution of the preemption issue.!® First,

the Court was clear that whether or not “Congress fore-

saw defective design lawsuits,” Congress “would not

have anticipated the current preemption problem,”

because “even among the body of lawsuits claiming

defective design, only a few would be likely, as here, to

establish what is in practical effect a new safety standard.

(App., p. 24a) This is so because the Safety Act authorizes

promulgation of ‘performance’ rather than design stan-

dards as such.” (App., p. 24a) That is certainly true. (pp.

14-15, above)

17 The use of this testimony is misleading in any event.

The testimony was not before the whole Congress, or even the

subcommittee concerned with the Safety Act. In fact, it does

not concern the Safety Act at all, much less § 1397(c). The

hearings related to General Motors’ private investigation into

the expert qualifications of Ralph Nader, then young and

unknown.

18 The First Circuit reviewed the state of design defect

litigation in 1966 to explain the ambiguity which § 1392(d) and

§ 1397(c), read together, create. The Eleventh Circuit found

those sections ambiguous, and that implied preemption

analyses was therefore applicable, without regard to the First

Circuit’s view of the state of design defect litigation. Taylor, 875

F.2d at 824-27.

25

Second, the Court found that petitioner’s claim, if

allowed, would stand as an obstacle to - would “frus-

trate” — the Safety Act and FMVSS 208, and it certainly

would. (pp. 18-20, above) That was the basis for the

Court’s determination that petitioner’s claim was impli-

edly preempted. Petitioner’s claim would stand as that

obstacle and frustrate the Act and FMVSS 208, whatever

the state of design defect litigation in 1966. Accordingly,

the conclusion that petitioner’s claim is impliedly pre-

empted inevitably follows, regardless of the state of that

litigation in 1966. See, e.g., Taylor, above.

But, petitioner protests, “given” the savings clause,

“once the court below held that there was no express

preemption, that should have been the end of the

inquiry.”19 (Pet., pp. 16-17) Petitioner overlooks settled

law. As the Court of Appeals explained, “Abilene [Texas &

Pac. Ry. v. Abilene Cotton Oil Co., 204 U.S. 426 (1907)] and

Ouellette [above] belie the supposed principle that a gen-

eral savings clause precludes a court from looking into

19 Petitioner also advises that there is a presumption

against preemption. But “state law which interferes with the

exercise Of . . . federally protected rights creates an actual

conflict and is preempted by direct operation of the Supremacy

Clause.” Brown v. Hotel & Restaurant Employees, 468 U.S. 491,

505 (1984) (emphasis added). See Taylor, above, 875 F.2d at 826,

quoting Felder v. Casey, __ U.S. __, 108 S. Ct. 2302, 2306

(1988), in turn quoting Free v. Bland, 369 U.S. 663, 669 (1962):

The relative importance to the State of its own law is

not material when there is a conflict with a valid

federal law, for the Framers of our Constitution pro-

vided that the federal law must prevail.

26

implied preemption.” (App., p. 46a) Moreover, a general

savings clause ought not be construed “to permit com-

mon-law actions that contradict and subvert a statutory

scheme.” (App., p. 44a)

That is also settled law. Abilene, above, 204 US. at

429-30, 446 (clause provided “nothing in this act shall in

any way abridge or alter the remedies now existing at

common law ... ”; existing but conflicting common law

remedy held preempted; general savings clause “cannot

in reason be construed” in a way “inconsistent with the

provisions of the act. . . . [An] act cannot be held to

destroy itself”); Ouellette, above, 479 U.S. at 494 (clause

provided “nothing in this section shall restrict any right

which any person... may have under... common law”;

Senate Report stated “compliance with... Act... would

not be a defense to a common law action for-

. damages”; common law claims subjecting water dis-

charger to “a variety of common law rules” along

waterways would undermine Congress’ purpose to

achieve “clear and identifiable” discharge standards;

Congress could not have “intended to undermine. . . [the

Act] through a general savings clause”); Kalo Brick & Tile

Co., above, 450 U.S. at 328-31. See also Taylor, 875 F.2d at

827-28 n.20 (“ ‘general’ savings clause, such as that con-

tained in the Safety Act, does not preciude a finding of

implied preemption”); Wickstrom, 416 N.W.2d at 840

(“General savings clauses will not preserve common-law

claims which interfere with or frustrate the purposes of

the act... .The purpose of such savings clauses is ‘not to

nullify other parts of the act, or to defeat rights or

remedies given by preceding sections, but to preserve all

exist .y rights which were not inconsistent with those

a

27

a

created by the statute’ ”) (quoting Pennsylvania R.R. v.

Puritan Coal Mining Co., 237 U.S. 121, 129 (1915)).2°

The First Circuit’s decision, and the wealth of author-

ity in accord with it, are in the mainstream of settled

implied preemption law.

CONCLUSION

The petition should be denied.

Respectfully submitted,

JoHN P. RALEIGH Davip M. HEILBRON*

NicHOoLas J. WITTNER Lesuige G. LANDAU

GENERAL Motors CorPORATION McCuTcHEN, Doy_rt, BROWN

New Center One Building & ENERSEN

3031 West Grand Boulevard Three Embarcadero Center

Detroit, MI 48232 San Francisco, CA 94111

STEPHEN J. BROGAN RicHARD P. CAMPBELL

Jones, Day, Reavis & PoGuE JOHN A.K. GRUNERT

Metropolitan Square CAMPBELL & ASSOCIATES

1450 G Street N.W. One Memorial Drive

Washington, DC 20005-2088 Cambridge, MA 02142

* Counsel of Record

Attorneys for Respondent

General Motors Corporation

August 25, 1989

20 Also in accord, Arrow Transp. Co. v. Southern Ry., 372 U.S.

658, 671 n.22 (1963); T.I.M.E. Inc. v. United States, 359 U.S. 464,

473-74 (1959); Pennsylvania v. Nelson, 350 U.S. 497, 501 n.10

(1956); Ventura County v. Gulf Oil Corp., 601 F.2d 1080, 1086 (9th

Cir. 1979), aff'd mem., 445 U.S. 947 (1980); Offshore Logistics, Inc.

v. Tallentire, 477 U.S. 207, 210-11 (1986).

App. 1

RULE 28.1 LIST OF PARTIES

APPENDIX A

General Motors Corporation is not a subsidiary of a

publicly owned corporation. All subsidiaries and affili-

ates of General Motors Corporation are wholly owned

except the following:

Aero Vironment Inc. (USA)

Alambrados Automotrices, S.A. de C.V. (Mexico)

Alambrados y Circuitos Electricos, S.A. de C.V.

(Mexico)

AMBRAKE Corporation (USA)

Applied Intelligence Systems, Inc. (USA)

Aralmex, S.A. de C.V. (Mexico)

Automotive Polymer Based Composites Joint Venture

and Development Partnership (Co-Partnership

among GM, Ford and Chrysler -to—coordinate basic

research on plastic component materials)

Autos y Maquinas del Ecuador S.A. (AYMESA)

(Ecuador)

Avis, Inc. (U.S.A.)

Bujias Mexicanas, S.A. de C.V. (Mexico)

Cableados de Juarez, S.A. de C.V. (Mexico)

CABLESA-Industria de Componentes Electricos Lim-

itads (Portugal)

Calsonic Harrison Co., Ltd. (Japan)

Comau Productivity Systems, Inc. (USA)

Compagnie de Faisceaux Tunisian International S.A.

(Tunisia)

App. 2

Compania Nacional de Direcciones Automotrices,

S.A. de C.V. (Mexico)

Componentes Delfa, C.A. (Venezuela)

Componentes Mecanicos de Matamoros, S.A. de C.V.

(Mexico)

Conductores y Componentes Electricos, de Juarez,

S.A. de C.V. (Mexico)

Convesco Vehicles Sales GmbH (West Germany)

Daewoo Automotive Components, Ltd. (Korea)

Delco Electronics Corporation (USA)

Delkor Battery Company, Ltd. (Korea)

Delmex de Juarez, S.A. de C.V. (Mexico)

Delredo, S.A. de C.V. (Mexico)

Detroit Deere Corporation (USA)

Detroit Diesel Corporation (USA)

DHB - Componentes Automotivos S.A. (Brazil)

DHMS Industries, Ltd. (Korea)

Diffracto Limited (Canada)

DR DE CHIHUAHUA, S.A. de C.V. (Mexico)

Ensamble de Cables Y Componentes, S.A. de C.V.

(Mexico)

Fabrica Colombiana de Automotores S.A. (“Col-

omotores”) (Colombia)

General Motors do Brasil, Ltda. (Brazil)

General Motors de Colombia S.A. (Colombia)

General Motors del Ecuador S.A. (Ecuador)

General Motors de Mexico, S.A. de C.V. (Mexico)

App. 3

General Motors Egypt, S.A.E. (Egypt)

General Motors Espana, S.A. (Spain)

General Motors (Europe) AG (Switzerland)

General Motors France (France)

General Motors Hellas, A.B.E.E. (Greece)

General Motors Iran Limited (Iran)

General Motors Kenya Limited (Kenya)

General Motors del Peru S.A. (Peru)

General Motors de Portugal, Limitada (Portugal)

Genie Mecanique Zairose, S.A.R.L. (Zaire)

GM Allison Japan Limited (Japan)

GMFanuc Robotics Corporation (USA)

Hua Tung Automotive Corporation (Rep. of China)

IBC Vehicles Limited (England)

Ilmor Engineering, Ltd. (England)

Industries Mecaniques Maghrebines, S.A. (Tunisia)

Industrija Delova Automobila, Kikinda (Yugoslavia)

INLAN-Industria de Componentes Mecanicos, Lda.

(Portugal)

Isuzu Motors Limited (Japan)

Isuzu Motors Overseas Distribution Corp. (Japan)

Kabelwerke Reinshagen GmbH (West Germany)

Kabelwerke Reinshagen Werk Berlin GmbH (West

Germany)

Kabelwerke Reinshagen Werk Neumarkt GmbH

(West Germany)

App. 4

Koram Plastics Company, Ltd. (Korea)

Metal Casting Technology, Inc. (USA)

Motor Enterprises, Inc. (USA)

New United Motor Manufacturing, Inc. (USA)

NHK Inland Corporation (Japan)

Omnibus BB Transportes, S.A. (Ecuador)

Packard Electric Ireland Limited (Ireland)

Promotora de Partes Electronics Automotrices

(Mexico)

P.T. Mesin Isuzu Indonesia (Indonesia)

~ Rimir, S.A. de C.V. (Mexico)

Rio Bravo Electricos, S.A. de C.V. (Mexico)

- Senalizacion y Accesorios del Automovil Yorka, S.A.

(Spain)

Shinsung Packard Company, Ltd. (Korea)

Sistemas Electricos y Commutadores, S.A. de C.V.

(Mexico)

Sung San Company, Ltd. (Korea)

Suzuki Motor Co., Ltd. (Japan)

Tactical Truck Corporation (USA)

Teknowledge, Inc. (USA)

TEREX Equipment Limited (Scotland)

Vauxhall Motors Limited (England) |

Vestiduras Fronterizas, S.A. de C.V. (Mexico)

View Engineering (USA)

Volvo GM Heavy Truck Corporation (USA)