Amicus Curiae Brief — Geier v. American Honda Motor Co.

(3 )

No. 98-1811 “~~

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1999

ALEXIS GEIER, ef al.

Petitioners,

V.

AMERICAN HONDA MOTOR CO., ef al.

Respondents.

BRIEF AMICI CURIAE OF THE STATES OF

MISSOURI, ARIZONA, CALIFORNIA, COLORADO,

CONNECTICUT, DELAWARE, IOWA, KANSAS,

MONTANA, NEW HAMPSHIRE, NEW YORK,

OKLAHOMA, OREGON, PENNSYLVANIA, RHODE

ISLAND, VERMONT AND WASHINGTON _IN

SUPPORT OF PETITIONERS

Respectfully submitted,

JEREMIAH W. (JAY) NIXON

Attorney General of Missouri

JAMES R. LAYTON

State Solicitor

Counsel of Record

CHARLES HATFIELD

Counsel to the Attorney General

Supreme Court Building

P.O. Box 899

Jefferson City, MO 65102-0899

(573) 751-3321

(other counsel listed inside cover)

\

Janet Napolitano

Attorney General of Arizona

1275 West Washington

Phoenix, Arizona 85007-2969

Bill Lungren

Attorney General of California

1300 I Street

Sacramento, California 95814

Barbara McDonnell

Chief Deputy Attorney General

State of Colorado

1525 Sherman St., 7th FI.

Denver, Colorado 80203

M. Jane Brady

Attorney General of Delaware

Department of Justice

820 N. French St.

Wilmington, DE 19801

Thomas J. Miller

Attorney General of lowa

Hoover Building

Des Moines, lowa 50319

-Carla J. Stovall

Attorney General of Kansas

301 S.W. 10th Avenue

Topeka, Kansas 66612-1597

Joseph P. Mazurek

Attorney General of Montana

215 N. Sanders

Helena, Montana 59620-1401

Philip T. McLaughlin

Attorney General of New Hampshire

33 Capitol Street

Concord, New Hampshire 03301

Eliot Spitzer

Attorney General of New York

The Capitol

Albany, New York 12224

W.A. Drew Edmondson

Attorney General of Oklahoma

2300 N. Lincoln Bivd., Ste. 112

Okiahoma City, Oklahoma 73105-4894

Hardy Myers >

Attorney General of Oregan

1162 Court Street NE

Salem, Oregon 97310-0506

D. Michael Fisher

Attorney General of Pennsylvania

16th Floor, Strawberry Square

Harrisburg, Pennsylvania 17120

Sheldon Whitehouse

Attorney General of Rhode Island

150 South Main St.

Providence, Rhode Island 02903

William H. Sorrell

Attorney General of Vermont

109 State Street

Montpelier, Vermont 05609-1001

Christine O. Gregoire

Attorney General of Washington

1125 Washington Street

P.O. Box 40100

Olympia, WA 98504-0100

i

QUESTION PRESENTED

Whether a statute that expressly saves from

preemption "any common law liability" nonetheless preempts

state tort law by merely precluding states and their political

subdivisions from establishing motor vehicle safety standards

that differ from those imposed by the federal government.

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE ...... 2... 6-05 5%> 2

INTRODUCTION AND SUMMARY

+0) |) rr re 3

, RS er ere re Seren St 5

1. The states and their residents were entitled to

rely on the savings clause in the Traffic and

Motor Vehicle Safety Act to protect their

ability to assert common law damages claims .. . 5

Il. The preemption provision in the Safety Act

would not have the broad preemptive effect as

held by the court below even in the absence of

a clause preserving common law remedies. ..... 9

Ill. The choice made by Congress to retain

common law remedies while prohibiting

regulatory actions flows from an essential

distinction between the Safety Act and the

common law: the former prevents injury; the

latter redresses injury. .........--5+-++055 13

IV. To preserve the position of the states in our

federal system, and to obligate_Congress to

take responsibility for preempting state laws,

this Court should clarify the limited scope of

the implied preemption doctrine ....... ae PD

ss eh RPE Ty TC Tere rT eer ee 19

TABLE OF AUTHORITIES

CASES Page

Alden v. Maine, 119 S. Ct. 2240 (1999) ........... 7

American Airlines v. Wolens, 513 U.S. 219 (1995) .... 9

Bethlehem Steel Co. v. New York State Labor

Relations Bd., 330 U.S. 767 (1947) ....... 3,9

Cipollone v. Liggett Group, Inc.,

305 U.S. $04 (1992) .......... 3, 5, 10, 12, 17

CSX Transp., Inc. v. Easterwood,

es ie Pa. ois sw De he 3

Drattel v. Toyota Motor Corp.,

699 N.E.2d 376 (N.Y. 1998) ............. 12

Estate of Cowart v. Nicklos Drilling Co.,

See a a eg Sly 11

Florida Lime & Avocado Growers, Inc. v. Paul,

SSRI e's cts 3,9

Florida Prepaid Postsecondary Educ. Expense Bd.,

v. College Savings Bank,

' nn id ens tS 28 tc 66 4 a's 7

Ford Motor Co. v. Tebbets, 665 A.2d 345 (N.H. 1995),

cert. denied, 516 U.S. 1072 (1996) ......... 12

Freightliner Corp. v. Myrick, 514 U.S. 280 (1995) ... 18

iv

Garcia v. San Antonio Metropolitan Transit Auth.,

469 U.S. S28 (19BS) 2. ewe ccc ceees 7,8

Gregory v. Ashcroft, 501 U.S. 452 (1991)... ...-5-. 8

Hawaiian Airlines, Inc. v. Norris,

S02 US. BOS MISO) www cccnewbaeseudess 3

Heck v. Humphrey, 512 U.S. 477 (1994) ... 2.20... 13

Kassel v. Consolidated Freightways Corp.,

OOD UE Ge CRO cc Vidic deed v0 deed ee 3

Lochner v. New York, 198 U.S. 45 (1905) ......... 17

Medtronic, Inc. v. Lohr,

SOR UE GeEED 5 cdi cet otaeee 5, 15, 17

Minton v. Honda of America Mfg., Inc.,

684 N.E.2d 648 (Ohio 1997) ..........5.. 12

Munroe v. Galati, 938 P.2d 1114 (Ariz. 1997) ...... 12

Nevada v. Hall, 440 U.S. 410 (1979) .......... 7, 18

New York v. United States, 505 U.S. 144 (1992) ...... 7

Rice v. Santa Fe Elevator Corp.,

Ek OF) Perey re arr ae 3,9

Seminole Tribe of Florida v. Florida,

ROR REM i gt Oh gs at 7

Silkwood v. Kerr-McGee Corp.,

G64 US, TER TUB. svi ce rec vectvesegss 15

Vv

Simon & Schuster, Inc. v. New York Crime

Victims Bd., 502 U.S. 105 (1991) .......... 13

U.S. Term Limits, Inc. v. Thornton,

De PEPE ek uk oko ee eccenen 8

United Construction Workers v. Laburnum

Construction Corp., 347 U.S. 656 (1954) .... 14

United States v. Lopez, 514 U.S. 549 (1995) ........ 7

Wilson v. Pleasant and General Motors Corp.,

660 N.E.2d 327 (Ind. 1995) .............. 12

STATUTES

ees NE occ Shae bai even 4

OER ie se Bs ie hoy ac 10

on ESIC Te SEN ae ala eae 7

OLR GAs i 4, 10, 11

RO I ec. etn ast cor 4, 6

SN ge Bn a ey 9

RP eg oe a i ae 4

UR Ne i ene 4

49 U.S.C.App. § 1305(a(1) ... 0... cece eee ee 9

fale. Caw. Git. Aga: BAD TOL oo. . ove vc eee 17

vi

Colo. Rev. Stat. § 13-21-403(1)(b) «2... 6 ee ee ees 17

Kan. Stat. Ann. § 60-3304(a) 2... 6 6. ees 17

Ky. Rev. Stat. Ann. § 411.310(2) ..........5046- 17

Mont. Code Ann. § 69-4-201 ..........50 eee eee 17

N.D. Cent. Code § 28-01.1-05(3) 2... ......5055- 17

te Fey Se | eee ere ree a 17

Ohio Rev. Code Ann. § 2307.80(C) ...........45. 17

me NS Be | reo re yore cre. Pe 17

Utah Code Ann. § 78-15-6(3) ... 2... eee eee eee 17

Wes Cate Ame. © 7G oc eek cet tees 17

MISCELLANEOUS

Stephen Breyer, REGULATION AND

ITS REFORM 103 (1982) ............ 13, 15, 19

Paul Deuffert, The Role of Regulatory Compliance in

Tort Actions, 26 HARV. J. ON LEGIS. 175 (1989) 16

THE FEDERALIST, No. 46, p. 332 (B. Wright ed. 1961) . . 7

THE FEDERALIST, No. 62, p. 408 (B. Wright ed. 1961) . . 7

Mary Lyndon, Tort Law and Technology,

12 YALE J. ON REG. 137 (1995) ........ 14, 15

Model Uniform Product Liability Act § 108(A)...... 17

vii

Restatement (Second) of Torts § 288(c) ........... 16

Steven Shavell, Liability for Harm Versus Regulation

of Safety, 13 J. LEGAL Stub. 357 (1984) ..... 19

Judge Kenneth Starr & Judge Patrick E. Higginbotham,

et al., The Law of Preemption: A Report of the

Appellate Judges Conference (1991) ...... 8, 19

L. Tribe, AMERICAN CONSTITUTIONAL LAW § 6-25,

ih, I EO a ee aig oe wre oe s

49 Fed. Reg. 28,962 - 29,010 (1984) .............. 6

—«

ee

No. 98-1811

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1999

ALEXIS GEIER, ef ai.

Petitioners,

Vv.

AMERICAN HONDA MOTOR CO., ef al.

Respondents.

BRIEF AMICI CURIAE OF THE STATES OF

MISSOURI, ARIZONA, CALIFORNIA, COLORADO,

CONNECTICUT, DELAWARE, IOWA, KANSAS,

MONTANA, NEW HAMPSHIRE, NEW YORK,

OKLAHOMA, OREGON, PENNSYLVANIA, RHODE

ISLAND, VERMONT AND WASHINGTON _IN

SUPPORT OF PETITIONERS

2

INTEREST OF AMICI CURIAE

Amici curiae, the undersigned Attorneys General of

the States of Missouri, Arizona, California, Colorado,

Connecticut, Delaware, lowa, Kansas, Montana, New

Hampshire, New York, Oklahoma, Oregon, Pennsylvania,

Rhode Island, Vermont, and Washington, submit this brief in

support of petitioners Alexis Geier, et al.' Amici have a

strong interest in preserving the appropriate balance of

authority between the States and the federal government.

They regularly defend not just statutory but common law

rights of states, state officials, and state subdivisions -- rights

that are threatened by the rule adopted by the U.S. Court of

Appeals for the District of Columbia Circuit. Attorneys

general use powers granted both by statute and by the

common law to protect the public health, safety, and welfare

of the citizens of their states. The use of those powers is

threatened because the holding of the court below deprives

the state common law of protection expressly granted by

Congress. According to that court, common law remedies

conflict with a statute that on its face precludes the states only

from establishing automobile safety standards in competition

with those set by federal statutes and regulations, while

expressly preserving common law liability.

The common law rights that the attorneys general use

and seek to protect have developed through long processes of

evolution, often independent of legislative enactment. The

common law rights include torts that derived from English

law, survived the colonial period and the ratification of the

Constitution of the United States, and continue to evolve to

balance the needs and rights of victims in our modern world.

' Some portions of this brief were originally drafted by Jonathan S.

Massey, a sole practitioner in the District of Columbia. Mr. Massey is not

counsel for any party.

3

Torts provide redress for injuries -- regardless of whether

those injuries were caused by legal or illegal acts. Again, the

amici have a significant interest in preserving the availability

of that avenue for relief -- and in preventing its erosion

through allegedly implicit preemption, especially when in the

same statute Congress included language that led the states

and potential plaintiffs to believe that tort remedies remained

intact.

INTRODUCTION AND SUMMARY OF ARGUMENT

This case involves an aspect of the common law that

redresses injury -- one that protects the health and safety of

a state’s citizens, albeit through relief after the fact. This

Court has repeatedly said that preemption of state efforts to

protect health and safety "should not be lightly inferred."

Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 252 (1994)

(internal quotation omitted). Local laws relating to health and

safety are "those ‘the Court has been most reluctant to

invalidate."" Kassel v. Consolidated Freightways Corp., 450

U.S. 662, 670 (1981) (citation omitted).

Even outside the health and safety context, this Court

has declined to affirm preemption unless it finds “an

unambiguous congressional mandate" to preempt state law.

Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S.

132, 147 (1963). Ambiguity is not tolerated; "pre-emption

will not lie unless it is the ‘clear and manifest purpose of

Congress." CSX Transp., Inc. v. Easterwood, 507 U.S. 658,

664 (1993) (quoting Rice v. Santa Fe Elevator Corp., 331

U.S. 218, 230 (1947)). See also Cipollone v. Liggett Group,

Inc., 505 U.S. 504, 518 (1992). "Any indulgence in

construction should be in favor of the States, because

Congress can speak with drastic clarity whenever it chooses

to assure full federal authority, completely displacing the

States." Bethlehem Steel Co. v. New York State Labor

4

Relations Bd., 330 U.S. 767, 780 (1947) (Frankfurter, J.,

dissenting).

Here, the Court should not begin its analysis with the

preemption clause contained in the National Traffic and

Motor Vehicle Safety Act of 1966, 15 U.S.C. § 1381, et seq.’

Rather, it should start with the clause most pertinent to the

question of the continued validity of common law remedies:

the portion of 15 U.S.C.-§ 1397(k) that expressly saved

common law remedies from preemption. Because there is

nothing in the Safety Act to limit that savings clause so as to

exclude traditional tort remedies, the express language of that

clause dictates the result in this case.

If the Court were to consider in detail the Safety Act’s

preemption clause, 15 U.S.C. § 1392(d), it would find little

to support the conclusion reached below. The language is

prospective in every respect, addressing affirmative state laws

or regulations that attempt to set manufacturing standards that

differ from those set by Congress and the Department of

Transportation.

That Congress would choose to preempt state efforts

to set differing standards, yet permit tort actions based on

individual sets of facts, is a logical result of the key

difference between the type of regulation embodied in the

Safety Act and the remedy established by common law torts.

The former is prospective, trying to prevent injury. The latter

> The provisions at issue here have been recodified to Title 49 in

connection with the assignment of authority to the Department of

Transportation. Thus the "savings" clause (see p. 5, supra) contained in

15 U.S.C. § 1397(k) is found at 49 U.S.C. § 30103(e). The “preemption”

clause contained in 15 U.S.C. 1392(d) (see p. 9, supra) is found at

49 U.S.C. § 30103(b). Following the pattern of the petition for writ of

certiorari, amici use the original Title 15 references.

5

is retrospective, trying to redress injury. It is implausible

here, as it was in Medtronic, Inc. v. Lohr, 518 U.S. 470

(1996), to suggest that Congress intended to leave injured

persons without a remedy, when it merely barred competing

State standards and expressly reserved the availability of

common law liability.

The course chosen by the lower courts here and in

similar cases demonstrates the need for this Court to clarify

the limited scope of the implied preemption doctrine. That

doctrine should not be applied at all where, as here, there is

a provision in the statute preserving common law remedies.

But even where it is applied, the doctrine must be limited if

it is to avoid conflict with the constitutional concerns of

federalism and with the need to preserve both regulatory and

post-injury redress as key elements in our efforts to protect

the health and welfare of all Americans.

ARGUMENT

Il. The states and their residents were

entitled to rely on the savings clause in

the Traffic and Motor Vehicle Safety

Act to protect their ability to assert

common law damages claims.

The element that most clearly distinguishes this case

from Cipollone and other recent preemption cases is the

presence in the Safety Act of a “savings clause," by which

Congress declared the continued viability of state law

regardless of how the preemption language elsewhere in the

Act is construed. The states and their residents were entitled

to rely on the presence of that clause as they initially

considered whether to support or to fight the enactment of the

Safety Act. They were entitled to rely on that clause as they

purchased and drove automobiles after the Act was passed.

6

And they should be entitled to rely on that clause now, when

manufacturers seek to read the Safety Act's preemption

provision so broadly that it swallows the savings clause

whole.

The savings clause is, in essence, an anti-preemption

provision. It expressly preserves state common law remedies

despite the presence of a preemption clause in the same

statute: “Compliance with any Federal motor vehicle safety

standard issued under this subchapter does not exempt any

person from any common law liability." 15 U.S.C.

§ 1397(k). The plaintiff here asserted that the defendant had

"common law liability.”

The Department of Transportation recognized, when

promulgating the final rule regarding automatic restraints in

1985, that tort liability remained a part (amici would argue,

a critically »mportant part) of the scheme to protect

automobile occupants. Thus Secretary of Transportation Dole

pointed to “potential liability" to rebut claims that

manufacturers would always adopt “the least expensive

alternative" among those permitted by the rule. 49 Fed. Reg.

28,962-29,010, at 29,000 (1984). Insurers had commented on

“the potential of automatic restraint systems to reduce product

liability claims” (id. at 28971), never suggesting (at least

according to the Department’s summary of comments) that

the 1966 Safety Act statute had eliminated that potential.

Others expressly pointed out that despite the Safety Act,

"[pjeople whose crash injury would have been averted had the

car been equipped with an air bag can sue the car

manufacturer to recover the dollar value of that injury." /d.

at 28972.

Those observations were entirely rational because the

savings clause is unambiguous. It preserved manufacturers’

liability for state common law torts. Its presence in the

;

statute prevents this Court from having to reach the question

of whether the Safety Act's preemption clause can be

construed broadly, consistent with constitutional mandates.

It prevents the Court from having to call upon its Tenth and

Eleventh Amendment precedents, or applying constitutionally-

required, but judicially-defined, protections for state

sovereignty, such as those addressed in United States v.

Lopez, 514 U.S. 549 (1995); New York v. United States, 505

U.S. 144, 170 (1992); Alden v. Maine, 119 S. Ct. 2240

(1999); Seminole Tribe of Florida v. Florida, 517 U.S. 44

(1996); and Florida Prepaid Postsecondary Educ. Expense

Bd. v. College Savings Bank, 119 S. Ct. 2199 (1999).

To now, years after it was enacted, restrict the

interpretation of the savings clause so severely that it has no

real meaning would be to belatedly deprive the states of their

ability to play their essential role in the legislative process.

The States qua States, and through their representatives in the

central government, play a critical, if indirect, role in the

crafting of federal legislation. James Madison explained that

the federal government “will partake sufficiently of the spirit

[of the States], to be disinclined to invade the rights of the

individual States, or the prerogatives of their governments.”

THE FEDERALIST, No. 46, p. 332 (B. Wright ed. 1961).

Madison placed particular reliance on the equal representation

of the States in the Senate, which he described as "at once a

constitutional recognition of the portion of sovereignty

remaining in the individual States, and an instrument for

preserving that residuary sovereignty." THE FEDERALIST, No.

62, p. 408 (B. Wright ed. 1961). As the Chief Justice has

remarked, "(t]he tacit postulates [of the constitutional plan]

are as much engrained in the fabric of the document as its

express provisions." Nevada v. Hall, 440 U.S. 410, 433

(1979) (Rehnquist, C.J., dissenting).

One of the vital "procedural safeguards inherent in the

structure of the federal system," Garcia v. San Antonio

Metropolitan Transit Auth., 469 U.S. 528, 552 (1985), is the

requirement of a crystal-clear statement of Congressional

intent before the States are stripped of the right to govern

themselves and to ensure their residents redress for injuries

caused by unsafe products.

{I}nasmuch as this Court in Garcia has left

primarily to the political process the protection

of the States against intrusive exercises of

Congress’ Commerce Clause powers, we must

be absolutely certain that Congress intended

such an exercise. "[T]o give the state-

displacing weight of federal law to mere

congressional ambiguity would evade the very

procedure for lawmaking on which Garcia

relied to protect states’ interests.”

Gregory v. Ashcroft, 50\ U.S. 452, 464 (1991) (quoting L.

Tribe, AMERICAN CONSTITUTIONAL LAW § 6-25, p. 480 (2d

ed. 1988). See also U.S. Term Limits, Inc. v. Thornton, 514

U.S. 779, 871 n.12 (1995) (Thomas, J., dissenting) (quoting

the same sentence of AMERICAN CONSTITUTIONAL LAW and

describing Gregory as “applying this argument"); and Judge

Kenneth Starr & Judge Patrick E. Higginbotham, ef al., The

Law of Preemption: A Report of the Appellate Judges

Conference 50-51 (1991) (The requirement of a "clear

legislative intent to preempt" is also “consistent with the

Court’s reliance on clear statement rules in other areas of the

law.").

By reversing the decision below, this Court will

merely confirm that Congress, by choosing to preserve state

common law rights, recognized the importance of the

"federalist structure of joint sovereigns” and appropriately

addressed the "proper balance between the States and the

9

Federal Government." Gregory v. Ashcroft, 501 U.S. at 459.

Il. The preemption provision in the Safety

Act would not have the broad

preemptive effect as held by the court

below even in the absence of a clause

preserving common law remedies.

The courts that blazed the path followed by the court

below held that the Safety Act’s preemption clause was

entirely dispositive. To reach that conclusion, each of those

courts had to run roughshod over both the savings clause and

the common law of the various states. Even without the

presence of the savings clause, the preemption clause would

have to meet the high standard this Court sets for Congress

when it acts to deprive states and their residents of

longstanding rights. Whether that standard is phrased as

requiring an “unambiguous congressional mandate" (Florida

Lime & Avocado Growers, Inc. v. Paul, 373 U.S. at 147), a

“clear and manifest purpose" (Rice v. Santa Fe Elevator

Corp., 331 U.S. at 230), or “drastic clarity" (Bethlehem Steel

Co. v. New York State Labor Relations Bd., 330 U.S. at 780

(Frankfurter, J., dissenting)), it is not met by the language in

the Safety Act.

The Safety Act's preemption provision does not speak

of law “relating to” a subject, as do statutes such as the

Employee Retirement Income Security Act (ERISA) and the

Airline Deregulatory Act. See, e.g., American Airlines v.

Wolens, 513 U.S. 219, 223 (1995), citing, 29 U.S.C.

§ 1144(a) (ERISA “provides for the preemption of state laws

‘insofar as they . . . relate to any employee benefit plan’");

and 49 U.S.C.App. § 1305(a)(1) (Deregulation Act preempts

laws “relating to rates, routes, or services of any air carrier”).

Rather, it only speaks of "Federal motor vehicle safety

standards” and only precludes states from establishing higher

10

“standards”:

Whenever a Federal motor vehicle safety

standard established under this subchapter is in

effect, no State or political subdivision of a

State shall have any authority either to

establish, or to continue in effect, with respect

to any motor vehicle or item of motor vehicle

equipment any safety standard applicable to

the same aspect of performance of such

vehicle or item of equipment which is not

identical to the Federal standard.

15 U.S.C. § 1392(d). The language does not fully explain the

scope of its application to state laws. But both read alone

and read with the definitions found in 15 U.S.C. § 1391, it

provides some clear markers for judicial construction.

1. Use of the phrase "State or political subdivision of

a State” indicates that Congress was referring to positive state

law, not to common-law claims. This is not a phrase that

Congress would have used to refer to the bodies that issue or

apply the common law. Although the term "state law" may

include common law as well as statutes and regulations,

Cipollone, 505 U.S. at 522 (plurality opinion), neither a court

nor a jury in a state court case (much less a jury in a federal

court case applying state law) is typically referred to as a

"State or political subdivision of a State." We are aware of

no practice or precedent for saying that a "State" “establishes”

a “standard” by applying common law tort principles to a

particular set of facts. By comparison, when legislation is

signed into law, when regulations are promulgated, or when

ordinances are adopted, it is often said that a "State" (or a

county or city) has changed its law. That is the logical limit

on preemption here.

. — eT ER eg ae -

2. States do not "establish" standards by means of the

common-law tort system. The general norms embodied in the

common law have been "established" over hundreds of years.

Nor do individual verdicts "continue in effect" any form of

requirements. The use of “continue” does not suggest the

clause covers the ever-evolving concepts of common law

torts. Nor does "continue" fit the repeated application of tort

principles to unique sets of facts. Tort awards simply do not

fit the mold of positive, concrete acts that the words

"establish" or "continue" contemplate.

3. The word "standards," read in context, suggests

positive enactments, not common law claims. But unlike

“establish,” the meaning of "standards" is evident from both

its repeated use and the definition section of the Safety Act.

The word is used three times in § 1392(d). In two instances

-- with respect to federal safety standards -- it unquestionably

means positive enactments, not court actions for damages.

That is consistent with the definition section of the Safety

Act. A “motor vehicle safety standard” is defined as

a minimum standard for motor vehicle

performance, or motor vehicle equipment

performance, which is practicable, which

meets the need for motor vehicle safety and

which provides objective criteria.

15 U.S.C. § 1391(2). Only once, in the reference to state-law

requirements, is the word "standards" even arguably

ambiguous. It is "a basic canon of statutory construction that

identical terms within an Act bear the same meaning." Estate

of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 479 (1992).

And that meaning here is a prospective standard with

objective criteria -- not the rules governing recovery for

common law torts.

12

4. Common-law claims do not establish or continue

requirements “with respect to [a] motor vehicle" at all,

because a defendant is always free -- indeed, sometimes is

expected -- to pay damages rather than to modify its conduct.

The only action ever required by a tort claim is the payment

of a damages judgment -- not action with respect to a motor

vehicle. Thus, a defendant is always able to comply with the

federal standard and to pay compensation to those injured by

its misconduct. There is no possibility of incompatible legal

commands in ordinary damages suits.

Again, though, this commonsense understanding of the

preemption provision is fortified by the savings clause. In

light of that enactment, it would defy Congressional intent to

resort to implied preemption analysis. This is indeed an

instance where "there is no need to infer congressional intent

to preempt state laws from the substantive provisions of the

legislation." Cipollone, 505 U.S. at 517.’

The effort by the court below to place the round peg

of a common law tort into the square hole of an equipment

or performance standard should be rejected. Until Congress

repeals the savings clause and modifies the preemption clause

to match the nature of a common law remedy, the availability

of such remedies must remain a matter of state, not federal

law.

> Thus, five state courts of last resort have properly held that no-airbag

claims are not subject to either express or implied preemption. Amici seek

to preserve the holdings in Ford Motor Co. v. Tebbets, 665 A.2d 345

(N.H. 1995), cert. denied, 516 U.S. 1072 (1996); Wilson v. Pleasant and

General Motors Corp., 660 N.E.2d 327 (Ind. 1995); Munroe v. Galati,

938 P.2d 1114 (Ariz. 1997), Minton v. Honda of America Mfg., Inc., 684

N.E.2d 648 (Ohio 1997); and Drattel v. Toyota Motor Corp., 699 N.E.2d

376 (N.Y. 1998).

13

Ill. The choice made by Congress to retain

common law remedies while prohibiting

regulatory actions flows from an

essential distinction between the Safety

Act and the common law: the former

prevents injury; the latter redresses

injury.

Congress’ decision not to preempt state common law

is hardly surprising. Here, as in many other contexts,

Congress chose to address prevention of harm through the

imposition of nationwide standards on manufacturers of goods

placed in interstate commerce. But Congress, again, as in

many other contexts, left to the states the question of redress

for particular injuries.

Although awarding damages for injuries after the fact

has some deterrent effects, its principal purpose is to

compensate injured victims.‘ "Over the centuries the

common law of torts has developed a set of rules to

implement the principle that a person should be compensated

fairly for injuries caused by the violation of his legal rights.’”

Heck v. Humphrey, 512 U.S. 477, 483 (1994) (citation

omitted). The tort system operates on a retrospective basis.

Each case requires an examination of the particular facts

regarding a particular victim and a particular tortfeasor. Tort

law is tied to the goal of compensation. See Simon &

Schuster, Inc. v. New York Crime Victims Bd., 502 U.S. 105,

118 (1991) ("Every State has a body of tort law serving" its

* See, e.g., Stephen Breyer, REGULATION AND ITS REFORM 176 (1982)

(explaining that tort law has deterrent effects, but that "the common law,

as administered by the courts, may reflect certain noneconomic or moral

factors that will make it difficult to use shifts in common-law liability to

achieve basically economic ends").

14

"compelling interest" in “ensuring that victims . . . are

compensated by those who harm them.”").

By contrast, statutes and regulations are typically

prospective in nature. They focus not on compensating

persons for injuries already sustained, but on preventing

socially harmful activities. “Regulation is not designed to

provide or account for compensation" to the victims of

dangerous products and their families. Mary Lyndon, Jort

Law and Technology, 12 YALE J. ON REG. 137, 172 (1995).

Safety standards can only attempt to head off injuries in the

future -- including injuries for which common law torts

provide remedies.

The difference between the tort and regulatory systems

means that a Congressional decision to prevent States from

adopting conflicting positive-law enactments is entirely

different from a decision to curtail the compensatory function

of tort law. Even if a State cannot alter a product’s design,

it should be able to provide a judicial system that resolves

claims for wrongful injuries to its citizens and to decide that,

as between a manufacturer and an injured party, the

manufacturer ought to bear the cost of compensating for those

injuries it could have prevented. To hold otherwise collapses

the tort system’s secondary purpose, deterrence, into its

primary purpose, relieving the burden of those injured by the

decisions and acts of others.

Recognizing the important distinction between

regulation and the tort system, this Court has traditionally

held that statutes like the Safety Act do not cut off victims’

rights to fair compensation under state law. E.g., United

Construction Workers v. Laburnum Construction Corp., 347

U.S. 656, 663-64 (1954) (where Congress "neither provided

nor suggested any substitute for the traditional state court

procedure for collecting damages for injuries caused by

— ——— < ——

15

tortious conduct," this Court refused "to cut off the injured

respondent from this right to recovery,” observing that to do

so would "deprive it of its property without recourse or

compensation" and "in effect, grant petitioners immunity from

liability or their tortious conduct."); Silkwood v. Kerr-McGee

Corp., 464 U.S. 238, 251 (1984) (where there was "no

indication that Congress even seriously considered precluding

the use of [tort] remedies,” this Court declined "to believe

that Congress would, without comment, remove all means of

judicial recourse for those injured by illegal conduct.").

Recently, in Medtronic v. Lohr. a plurality observed that an

argument that "Congress effectively precluded state courts

from affording state consumers any protection from injuries

resulting from a defective medical device" would be

"implausible." 518 U.S. at 486 (Stevens, J.). Moreover,

because there is no suggestion that the Act created an implied

private right of action, Congress would have barred most, if

not all, relief for persons injured by defective medical

devices. /d. at 487.

Rather than compete, the regulatory system and the

tort system complement each other, with one system

attempting to anticipate problems before they occur and the

other providing relief when consumers suffer injuries.

Indeed, there is significant cross-fertilization between the tort

system and regulation. For example, information obtained in

individual tort suits often informs the judgment of federal

regulators about whether existing standards are adequate or

whether new protections should be proposed. "Obtaining

accurate, relevant information" often constitutes a "central

problem" for an administrative agency. Stephen Breyer,

REGULATION AND ITS REFORM 103 (1982); see also id. at 112

("the information problem is central and endemic to the

standard-setting process"). As one scholar observed, tort

litigation is "an important social learning mechanism" because

it generates data about the risks of new technologies.

16

Lyndon, supra, 12 YALE J. ON REG. at 176. "[T]Jort law’s

Signals contain necessary basic messages that are not

delivered through any other medium," “offer[ing] advantages

that we need to account for before preempting tort law." Jd.

Reading regulatory statutes as preempting common-law

claims for damages would sacrifice the important information-

gathering function of the tort system.

At bottom, the contention that government

acquiescence in a particular manufacturer’s design should

insulate it from tort liability -- even in the absence of an

explicit Congressional statement to that effect -- is an

argument about substantive social policy, not preemption law.

The defendant’s plea is one that should be addressed to

elected legislatures and politically accountable executive

officers, not to the courts. The States should be free to

decide, as a matter of distributive justice, whether

manufacturers should bear the cost of injuries resulting from

devices whose design is not dicatated by federal law, but

merely meets minimum federal standards.

Preemption is all the more unjustified because state

tort law has already accommodated the defendant's concern.

It is axiomatic that standards set by federal agencies are

useful benchmarks for the finders of fact in particular tort

cases and that compliance with federal standards is at least

evidence of due care. See generally Restatement (Second) of

Torts § 288(c).° Some jurisdictions go further and mandate

* See also Paul Deuffert, The Role of Regulatory Compliance in Tort

Actions, 26 HARV. J. ON LEGIS. 175, 175 (1989) ("For a hundred years

courts have considered axiomatic the common law principle that, against

possible liability in tort, a defendant's compliance with governmental

Statutes and regulations is admissible only as evidence of the defendant's

exercise of due care. Therefore, such compliance generally ‘does not

prevent a finding of negligence where a reasonable man would take

additional precautions.’") (citations omitted).

Ew pee

- "'e- —-

17

that compliance with such standards is a conclusive defense

to tort liability;° establishes a rebuttable presumption of non-

negligence;’ or bars punitive damages‘

In recent years, nearly every State has considered --

and the vast majority have implemented -- legislative reform

of product liability laws. Congress itself has considered

legislation on the topic.. The matter should be left to the

politically accountable branches. Preemption law should not

become, as a weapon against the States’ historic role in

allocating the cost of injuries, the modern-day equivalent of

Lochner v. New York, 198 U.S. 45 (1905).

IV. To preserve the position of the states in

our federal system, and to obligate

Congress to take responsibility for

preempting state laws, this Court should

clarify the limited scope of the implied

preemption doctrine.

In Cipollone, this Court corrected the Third Circuit’s

impressionistic judgment that tort suits would upset the

"balance" struck by Congress in the cigarette warning statutes.

In Medtronic, this Court corrected the sweeping preemptive

effect that lower courts had accorded to the Medical Device

® Mont. Code Ann. § 69-4-201.

” E.g., Model Uniform Product Liability Act § 108(A); Colo. Rev.

Stat. § 13-21-403(1)(b); Kan. Stat. Ann. § 60-3304(a); Ky. Rev. Stat.

Ann. § 411.310(2); N.D. Cent. Code § 28-01.1-05(3); Utah Code Ann. §

78-15-6(3).

* E.g., Ariz. Rev. Stat. Ann. § 12-701; N.J. Stat. Ann. § 2A:58C-5(c);

Ohio Rev. Code Ann. § 2307.80(C); Or. Rev. Stat. § 30.927; Utah Code

Ann. § 78-18-1.

18

Amendments. In this case, this Court should reaffirm that

express preemption is limited to the text drafted by Congress,

and must be interpreted according to the conventional tools of

statutory construction and with due regard for two

fundamental principles.

The first is the strong presumption against preemption

arising from the constitutional concerns of federalism rooted

in the Tenth Amendment and in what the Chief Justice has

described as "[t]he tacit postulates" of the constitutional plan.

Nevada v. Hall, 440 U.S. 410, 433 (1979) (Rehnquist, J.,

dissenting).

The second principle is that Congress legislates against

a background understanding of the significant distinction

between the tort and regulatory systems. Accordingly, a

Congressional decision to displace state positive-law

enactments should not be equated with a decision to bar state-

law tort suits for damages. Indeed, the presumption against

preemption is especially strong when Congress has failed to

provide a separate federal remedy for a person injured by

tortious conduct, as in the Safety Act.

This Court should also reaffirm the limited scope of

implied preemption. When Congress has expressly addressed

the matter of preemption in a specific statutory provision

whose meaning can be ascertained through the conventional

tools of statutory construction -- applied with reference to the

two principles outlined above -- preemption analysis should

ordinarily be at an end. See Freightliner Corp. v. Myrick,

514 U.S. 280, 289 (1995) (establishing "an inference that an

express pre-emption clause forecloses implied pre-emption").

This Court should eviphasize to the lower courts the need to

avoid reliance on imprecise statutory language to eliminate

decisions made by sovereign states.

19

When, as in this case,

the courts preempt state laws without explicit

congressional guidance, unelected and

unaccountable officials substitute their

preferences for those of the citizens of local

communities. . . . [The courts] in effect

assume a legislative role without accepting

legislative responsibility.

Judge Kenneth Starr & Judge Patrick E. Higginbotham, er ai.,

The Law of Preemption: A Report of the Appellate Judges

Conference 48 (1991). This Court, by reversing the use of

implied preemption in this case, will further force Congress

to accept responsibility for the choices it makes as it balances

state and federal interests. Again, Congress, not the courts,

must decide how or whether to implement the contemporary

preference for market-oriented incentives that continually

stimulate manufacturers to innovate and develop safer

products.”

CONCLUSION

The judgment of the Court of Appeals should be

reversed.

* See Steven Shavell, Liability for Harm Versus Regulation of Safety.

13 J. LEGAL Stup. 357, 359 (1984) (explaining that administrative

regulation is a centralized system of government control, while tort law

Is essentially a market-based system that employs the expertise and

information already accumulated by private firms in the ordinary course

of their business); Stephen Breyer, REGULATION AND ITS REFORM 105

(1982) (design standards “diminish{] incentive{s] to look for better

methods” and “freeze existing technology”).

20

Respectfully submitted,

JEREMIAH W. (JAY) NIXON

Attorney General of Missouri

JAMES R. LAYTON

State Solicitor

Counsel of Record

CHARLES HATFIELD

Counsel to the Attorney General

Supreme Court Building

P.O. Box 899

Jefferson City, MO 65102-0899

(573) 751-3321

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