# Opposition Brief — Wood v. General Motors Corp.

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1668%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1990
- **Citation:** 494 U.S. 1065

## Text

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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)

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1668%3A3. Public record. Not legal advice.