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

ALEXIS GEIER, WILLIAM GEIER,

AND CLAIRE GEIER,

Petitioners,

Vv.

AMERICAN HONDA MOTOR COMPANY, INC..

HONDA OF AMERICA MANUFACTURING, INC., AND

HONDA MOTOR COMPANY, LTD.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals for the

District of Columbia Circuit

BRIEF OF PRODUCT LIABILITY ADVISORY

COUNCIL, INC., AS AMICUS CURIAE

IN SUPPORT OF RESPONDENTS

HUGH F. YOUNG, JR. KENNETH S. GELLER

Executive Director Counsel of Record

Product Liability Advisory ERIKA Z. JONES

Council, Inc. JOHN J. SULLIVAN

1850 Centennial Park Drive Mayer, Brown & Platt

Reston, Virginia 2209] 1909 K Street, N.W.

(703) 264-5300 Washington, DC 20006

(202) 263-3000

QUESTION PRESENTED

Whether petitioners’ common law claim that respondents’ 1987

Honda Accord was defectively designed because it was not

equipped with an airbag is impliedly preempted by the National

Traffic and Motor Vehicle Safety Act and Federal Motor Vehicle

Safety Standard 208

TABLE OF CONTENTS

Page

QUESTION PRESENTED ...............00.00

TABLE OF AUTHORETIBS ............0-0005: iv

INTEREST OF THE AMICUS CURIAE ............ 1

INTRODUCTION AND SUMMARY OF ARGUMENT .. 1

AMER... on see 4

FEDERAL LAW IMPLIEDLY PREEMPTS A COMMON

LAW REQUIREMENT THAT 1987-MODEL-YEAR

AUTOMOBILES BE EQUIPPED WITH AN AIRBAG... 4

I. FMVSS 208 REFLECTS THE JUDGMENT THAT

SAFETY WOULD BEST BE ACHIEVED BY GIVING

MANUFACTURERS A CHOICE IN THE SELECTION

OF OCCUPANT RESTRAINT SYSTEMS ......... 4

ae; fl ee ae ary 4

1. Federal Motor Vehicle Safety Standards ..... 4

2. Federal Preemption and the Need for Uni-

form National Standards ............... 5

3. The “Bavles” GOD a 2.46 60s chk os eee 6

B. The Early History Of FMVSS 208........... 8

C. The 1984 Amendment Of FMVSS 208......... 12

D. The Subsequent Reviews Of The Occupant Re-

straint Standard By Congress, The D.C. Circuit,

A) are ets et ey 14

Il. PETITIONERS’ COMMON LAW CLAIM WOULD

FRUSTRATE THE PURPOSES OF FMVSS 208 . . 16

A. Section 1397(k) Does Not Preserve Common Law

Claims That Are Inconsistent With An FMVSS ... 18

B. Implied Conflict Preemption Is Fully Applicable

Under The Safety Act .............00000e 22

TABLE OF CONTENTS — Continued

Page

C. Petitioners’ Common Law Claim Would Frustrate

The Purpose Of DOT's 1984 Decision And Would

Undermine Congress’ Goal Of Creating Uniform

I ee er 25

ee A ee Be 30

iv

‘TABLE OF AUTHORITIES

Page(s)

Cases

American Tel. & Tel. Co. v. Central Office Tel., Inc.

oS Se rr ee eee 19

Boges v. Boggs, 520 U.S. 833 (1997) .. 2. 6 oo eee 24

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

GG so Pebalbee ss ces wih lsh deteeeiina ss 25

Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691 (1984) .. . 27

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

Ga, Gs Re i. sé dmb eedennsa vee 18, 28

Cipollone v. Liggett Group, Inc., 505 U.S. 504

GRD i 6 swedece lide s+ 6a capengakr bias 1, 22-23

Dawson v. Chrysler Corp., 630 F.2d 950 (3d Cir. 1980) .. . 20

Dorsey v. Honda Motor Co., 655 F.2d 650

Gs Cae. GED oo owe cee eb ee abe bebe wsiccces 20

English v. General Electric Co., 496 U.S. 72 (1990). 17, 20-21

Farmers Educ. & Coop. Union vy. WDAY, Inc.,

Dh s cd Wedeweta6¢eetee et 27

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

Se EE = oe we bd wekute cae 606k 27

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

ee Oe a oe ba ee hk ile ae a0-a 25

Freightliner Corp. v. Myrick, 514 U.S. 280 -

GD cain cise eb ober hbn 6440s 1, 3, 23-24

Goodyear Atomic Corp. v. Miller, 486 U.S. 174 (1988) .. . 20

Harris v. Ford Motor Co., 110 F.3d 1410 (1997) ....... 2

Hines v. Davidowitz, 312 U.S. 53 (1941) .......... 17, 25

Ingersoll-Rand Co. v. McClendon, 498 U.S. 133

GGED ce wcctweceboene Recess eeeawasesanes 24

Vv

TABLE OF AUTHORITIES — Continued

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

PE A she pes agudehaeevacawentl

Jones v. Rath Packing Co., 430 U.S. 519 (1977).

Knippen v. Ford Motor Co., 546 F.2d 993

en Se SO ck HR SGA cards

Lawrence County v. Lead-Deadwood School Dist.,

Sep GOED 0 GN de cin 6 esi WOs Cede

MVMA v. State Farm Mutual Auto. Ins. Co..

Gay a OF SUD 0 bs Ur ard SOSA Wwe s..

Malone v. White Motor Corp., 435 U.S. 497 (1978)

Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) ....

Montag v. Honda Motor Co., 75 F.3d 1414

SE hk os aS bee Be era/neas

Morales v. Trans World Airlines, Inc., 504 U.S. 374

sea ele ae bb de 6 oes koh k 6.6 meD-9 <

Dn . haan phe ba 6 $.6:A bald bake. 4a «2

GU weeee WE tie eo Wee 896 6e b's een pes

Northwest Cent. Pipeline Corp. v. Kansas Corp.

Comm'n, 489 U.S. 493 (1989) .............

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

Se ret pee | fee

E's ot 0 Sah a orn hone cw Ocke. <ie

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

og EE ee

Perry v. Mercedes Benz of North Am., Inc.,

Sor Pan tase Gee Ce. I9UR) . ww cess,

vi

TABLE OF AUTHORITIES — Continued

Page(s)

Pokorny v. Ford Motor Co., 902 F.2d 1116

OD a es ee ee ee 2, 9, 25, 27

Public Citizen v. Steed, 851 F.2d 444

i WR es es kw oy ok ee 14

San Diego Bidg. Trades Council vy. Garmon,

Ns I Fo ike ha ate at ee are) ee be al 21

Schick v. Chrysler Corp., 675 F. Supp. 1183

ek GE a 6 hn i od i ob oo 6a he Oe 6 A eee 28

Schwartz v. American Honda Motor Co.,

Pe ee en, ns wes hue tren 20

Silkwood v. Kerr-McGee Corp., 464 U.S. 238

RRR IB yay he Ae ne na rene are 20-21

State Farm Mutual Auto. Ins. Co. v. Dole,

re ise web et eae an 14

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

CG Se Fei cores ok ea eee 68 eee ee 2, 27

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

Se Ds 66 Ob pc be oe 60.0 0% 17-19, 22

Wood v. General Motors Corp., 865 F.2d 395

Se, Se Gh bw ow aun Ween e bees 2, 5, 26, 29

Constitutional Provision, Statutes, and Regulation

OES nnn ct ae es a es wl 3,7

hE PR eT ee oy 2

OG WL. BE: | 6 o. 6 Wiese vine 6 oo 6 Was Ces OA 4

A PT ae ee ee 4

2S Ee 6 6s bw is 040 6 6 habe hae tae passim

SES Be oak as hn dco de ee 4 oe ee ee 4

vii

TABLE OF AUTHORITIES — Continued

Page(s)

OE PEPE eR eee passim

III BS is Sp snvhsvinncs ida 9

A iis os vk. cede venicaed 9

nS FECES Pye rte reer 9

sg core c Bose nn aan 24

Ne ee ae te ea tee Sa 52 21

EP EROEE ESO Tre AEF 21

or ok. civ cari vada oe, 21

a Nt ie ARR aie gt Aa ag 8 15

Er as Se ees oes 2

III 5s daa eee cd cavlrs eet 7

a 855k SORE 7

Serna oo et oe ee 7

SSE Pee Re Here: 15

SEER AUER SRN eae pale an 1

TES ey cs ae cee 11

Pub. L. No. 102-240, § 2508, 105 Stat. 2085 (1991) ..... 15

Pub. L. No. 103-272, §1(e), 108 Stat. 943 (1993) ....... 7

Pub. L. No. 105-178, § 7103(a), 112 Stat. 466 (1998) .... 16

TT PT Toe Parr E ee bon pi passim

Other Authorities

H.R. Rep. No. 89-1776 (1966) .............5.. 4, 6,7

H.R. Conf. Rep. No. 89-1919 (1966) ............... 7

Race Oe ee 5

viii

TABLE OF AUTHORITIES — Continued

Traffic Safety: Hearing on S. 3005 Before the Senate

Comm. on Commerce, 89th Cong., 2d Sess. (1966) ..... 7

Traffic Safety: Hearings on H.R. 13228 Before the

House Comm. on Interstate and Foreign Commerce,

Ot Came. 26 ae: CO sn 5 on ciasnswesves 7

112 Cong. Rec. 14,253 (1966) ...... 0.000 cee ees 6, 28

B03 Cons, Sek: SEMPER vn ek. vc es es 8

120 Cong. Rec. 27,818 (1974) 0... 6. ccc ee eee 9

520 Comb, ak. STAUB CIOM ww ow ks ocee ee waves 9

199 Gan, Gin. SAGO CRIT ww... ec nncaccwveucs il

0 Sl. Ui BANU. os. kk vecdkaie cous 8

0 eh ie I ois 300s ih acc 8

pb a ie ES 65. osc dade eee 8

Sak Wt EOD ic vo oss we ence eb 8

0 Cnt Oe a ey 8

Spied Oi I. ss iss a ewaas 8

0 i OU on ick kb inws 9

be ee ie I i oii bw oka sees 10

OR a i es nc ok cok bande 10

Oh a i iit vc bere Xe 9

OE EE EE & ov a's. nok bi patedles eee 9

Sl is I ooo von chs cakdncmh bees i

SE I 5s che boinc fhe cat il

65 Sek: Gis PI i ok od ck < ccd cies on 12

49 Fed. Reg. 28,962 (1984)... 0... . ccc eee eeee 12-14

ix

TABLE OF AUTHORITIES — Continued

Page(s)

SPOS UTD CSR cue cde ce ee ecew ley 17

Pe eso cut beoeei tien aeee h 16

Pe we EIR. 6:6. w 6-0-6 00! vi'bvreie beemale ha 15

GPE PEED Sb ect betavuacvecsecewe 15

i oak as wey Hee 0 wb bee wales 15

i RR I ne ee ae eer a 16

a en ok. os Ah ee bg Sin ath 15

Se EOD No de wade eave Cece waean 16

EO. g's oy nine 064 Wd ws shee aoe 15

ee ae ere 15

eee eee ee 16

Department of Transportation, The Secretary's Decision

Concerning Motor Vehicle Occupant Crash Protection

GEE VERSO Ss 0. Va WER EEN. CONS e ene’ 10-11

INTEREST OF THE AMICUS CURIAE

The Product Liability Advisory Council, Inc. (“PLAC”) is a

non-profit corporation with 124 corporate members representing a

broad cross-section of American industry. A list of the corporate

membership of PLAC is attached as an appendix to this brief.

PLAC’s primary purpose is to file briefs as amicus curiae in cases

raising issues that affect the development of product liability law.

PLAC’s corporate members include manufacturers and

distributors whose products are regulated by the National Traffic

and Motor Vehicle Safety Act (“Safety Act”) and the Federal

Motor Vehicle Safety Standards (“FMVSS’s”) issued by the United

States Department of Transportation (“DOT”). Accordingly,

PLAC has a strong interest in assisting the Court in defining the

scope of federal preemption under the Safety Act and FMVSS 208.

PLAC has filed anicus briefs in numerous other cases in this Court

involving preemption under a variety of federal statutes, including

the Safety Act. See, e.g., Freightliner Corp. v. Myrick, 514 U.S.

280 (1995); Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996);

Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992).'

INTRODUCTION AND SUMMARY OF ARGUMENT

Petitioners contend that the 1987 Honda Accord was

defectively designed by respondents (collectively “Honda”) because

the automobile did not have a driver-side airbag.’ Petitioners

brought a common law product liability action seeking to impose

potentially massive liability on Honda based on this contention.

But both the district court and the court of appeals dismissed their

action as preempted by federal law.

' Letters from the parties consenting to the filing of this brief have

been lodged with the Clerk of this Court pursuant to Rule 37.3. In

compliance with Rule 37.6, PLAC states that this brief was not written

in whole or in part by counsel for a party, and no person or entity, other

than PLAC or its members, made a monctary contribution to the

preparation or submission of this brief.

? Petitioners assert only a “no airbag” claim; it is their exclusive

claim of defect (see, e.g., Pet. Br. 44 (petitioners “attempt to hold Honda

liable for failing to install an airbag”)). They do not contend that any

aspect of the occupant restraint system in the 1987 Accord was defective.

2

a

Like every other federal court of appeals to consider the issue,’

the D.C. Circuit held that petitioners’ common law “no airbag”

claim was preempted by the Safety Act, 15 U.S.C. §§ 1381-1431

(recodified at 49 U.S.C. §§ 30101-30169),* and FMVSS 208, 49

C.F.R. § 571.208. In reaching this conclusion, the court of

appeals relied on the lengthy and “tortured” history of FMVSS

208, the occupant restraint standard, which showed that in 1984 the

Secretary of Transportation had “explicitly rejected requiring

airbags in all cars on the ground that a more flexible approach

would better serve public safety” (Pet. App. 14). The court

reasoned (id. at 15):

{A]llowing design defect claims based on the absence of an

airbag for the model-year car at issue would frustrate the

Department's policy of encouraging both public acceptance of

the airbag technology and experimentation with better passive

restraint systems.

In attacking the D.C. Circuit's holding, petitioners and their

amici ask this Court to turn federal preemption law on its head.

They begin with a diversion, arguing that their common law “no

airbag” claim is not expressly preempted by the Safety Act. Of

course, the court of appeals affirmatively declined to resolve this

issue and based its holding exclusively on an implied preemption

analysis (Pet. App. 12). It is a telling sign of the weakness of

petitioners’ implied preemption argument that they devote so much

attention (see Pet. Br. 14, 18-34) to an issue that was not decided

below.

* See Montag v. Honda Motor Co., 75 F.3d 1414 (10th Cir. 1996);

Pokorny v. Ford Motor Co., 902 F.2d 1116 (3d Cir. 1990); Taylor v.

General Motors Corp., 875 F.2d 816 (Lith Cir. 1989); Wood v. General

Motors Corp., 865 F.2d 395 (ist Cir. 1988). The Ninth Circuit in Harris

v. Ford Motor Co., 110 F.3d 1410 (1997), held that “no airbag” claims

are expressly preempted by the Safety Act, without reaching the question

of implied preemption. Thus, the six federal courts of appeals that have

addressed the issue have all held that “no airbag” claims are preempted.

* For ease of reference, we cite to the prior codification of the Safety

Act, which was cited by the courts below and by petitioners and their

amici.

3

petitioners seek to radically transform federal preemption law.

They first assert that there can be no implied conflict preemption

under the Safety Act. But this Court rejected that very argument

in Myrick, 514 U.S. at 285, a case in which the Court engaged in

Petitioners finally contend, in the face of the Supremacy

Clause, U.S. Const. art. VI, cl. 2, and this Court's longstanding

precedents, that they should be allowed to proceed with their state

law claim that the 1987 Honda Accord was defective because it

lacked an airbag — even though the automobile’s occupant restraint

system (which consisted of lap and shoulder belts, and a warning

system to indicate an unfastened belt (Pet. 3; Pet. App. 14)) fully

satisfied FMVSS 208 and advanced the government's policy of

promoting a variety of occupant protection devices in 1987-model-

year automobiles.

Petitioners’ common law theory of liability would severely

impair a safety program that the federal government developed with

unprecedented thoroughness over a period of 30 years. During

much of that time, and in particular when the 1987 Accord was

manufactured, Congress and DOT concluded that automotive safety

would be undermined by depriving manufacturers of design

flexibility in occupant restraint systems. Thus, as the government

has acknowledged in this case (U.S. Br. 23-24), federal law

expressly gave Honda the option to install lap and shoulder belts

rather than airbags in the 1987 Accord.

Despite the lengthy and carefully nuanced regulatory history

of FMVSS 208, petitioners claim that the States are free to come

to the opposite conclusion: that automotive safety would have been

better served by (and Honda was under) a mandatory duty,

enforced by compensatory and punitive damages, to equip its 1987

Accord with airbags.

Our submission is simple and to the contrary: the federal

government's resolution of the complex question whether, when,

and how to require airbags in America’s automobiles may not be

set aside by state judges and juries who reach the conclusion that

the federal policy was inadequate or wrongheaded. As the Solicitor

General has explained (U.S. Br. 15-29), state law is not free, under

4

the Supremacy Clause, to impose requirements that conflict with

and subvert this carefully calibrated federal program of occupant

restraint regulation.

ARGUMENT

FEDERAL LAW IMPLIEDLY PREEMPTS A COMMON

LAW REQUIREMENT THAT 1987-MODEL-YEAR AUTO-

MOBILES BE EQUIPPED WITH AN AIRBAG

I. FMVSS 208 REFLECTS THE JUDGMENT THAT

SAFETY WOULD BEST BE ACHIEVED BY GIVING

MANUFACTURERS A CHOICE IN THE SELECTION

OF OCCUPANT RESTRAINT SYSTEMS

The lengthy history of the Safety Act and FMVSS 208

demonstrates conclusively that a common law claim requiring the

installation of airbags is impliedly preempted because it would

frustrate the policy underlying a safety standard adopted after

laborious study over decades by an expert federal agency.

A. The Safety Act

1. Federal Motor Vehicle Safety Standards

Congress enacted the Safety Act in 1966 to protect the public

“against unreasonable risk of accidents occurring because of the

design, construction, or performance of a motor vehicle, and

against unreasonable risk of death or injury in an accident.” 15

U.S.C. § 1391(1). Congress sought to accomplish this goal by

authorizing the Secretary of Transportation to prescribe safety

standards of nationwide applicability. Congress declared that such

standards must “meet the need for motor vehicle safety” and be

“reasonable” and “practicable” in their operation. 15 U.S.C. §§

1392(a), 1392(f(3). The Secretary is required under the statute to

consider “public acceptance or rejection” of a proposed standard.

Pacific Legal Found. v. DOT, 593 F.2d 1338, 1344 (D.C. Cir.

1979).

Although public safety is the “paramount purpose” of the Act,

Congress also directed the Secretary to give careful “consideration

{to} all relevant factors, including technological ability to achieve

the goal of a particular standard as well as consideration of

economic factors.” H.R. Rep. No. 89-1776, at 16-18 (1966). The

5

“tests of reasonableness of cost, feasibility and adequate lead time

should be included among those factors which the Secretary should

consider in making his total judgment.” S. Rep. No. 89-1301, at

6-7 (1966). Congress specifically directed the Secretary to

Ree dhe ee ee ae ee

“because it may be a practical economic and engineering

impossibility, as well as a source of great hardship and unnecessary

additional cost, to require that all vehicle changes required by any

new safety standard” be accomplished immediately. /d. at 7.

2. Federal Preemption and the Need for Uniform

National Standards

Congress intended the safety standards promulgated under the

Act to be “uniform national standards.” Wood v. General Motors

Corp., 865 F.2d 395, 412 (ist Cir. 1988). It achieved that

objective, in part, by preempting state law in the following express

terms (15 U.S.C. § 1392(d)):

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.

In explaining the need to preempt state law, the Senate Report

on the Act emphasized that “[t}he centralized, mass production,

high volume character of the motor vehicle manufacturing industry

in the United States requires that motor vehicle safety standards be

not only strong and adequately enforced, but that they be uniform

throughout the country.” S. Rep. No. 89-1301, supra, at 12.

Accordingly, “State standards are preempted” to the extent “they

differ from Federal standards” because “the primary responsibility

for regulating the national automotive manufacturing industry must

fall squarely upon the Federal Government.” /d. at 4, 12.

The House Report elaborated that “this preemption subsection

is intended to result in uniformity of standards so that the public as

well as industry will be guided by one set of criteria rather than by

6

a multiplicity of diverse standards.” H.R. Rep. No. 89-1776,

supra, at 17. As President Johnson noted: “The only alternative is

unthinkable — 50 standards for 50 different States. I believe that

this would be chaotic.” 112 Cong. Rec. 14,253 (1966).

In hearings on the Act, legislators and witnesses repeatedly

stressed that uniform national standards were necessary for three

reasons. First, the national scope of the issue of vehicle safety

compelled a national response. When Secretary of Commerce John

Connor was asked about the authority granted to the Secretary of

Transportation under the Act, he responded:

We think that the highway safety problem is a matter of great

public concern, and national interest. We don’t think that the

objectives that have been defined can be accomplished on a

piecemeal basis or by leaving the authority untouched that is

now vested in the States and municipalities.

Traffic Safety: Hearings on H.R. 13228 Before the House Comm.

on Interstate and Foreign Commerce, 8%h Cong., 2d Sess., pt. 1,

at 146 (1966) (hereafter “House Hearings”).

Second, uniform national standards were needed because

multiple and inconsistent state standards would “creat{e] chaos in

the automotive industry.” House Hearings, supra, at 606

(statement of Rep. Hathaway). Senator Abraham Ribicoff testified

that “if there is any item in American life that we use in our society

that has to have some national standards because of the very nature

of the item, it is the automobile.” Jd. at 574.

Third, uniform national standards were required because the

States were unable to develop appropriate safety standards. As

Senator Ribicoff observed, “[i}n simple language, we are forced to

establish a Federal role in highway traffic safety because State and

local authorities have been unable to do the whole job * * *. It’s

time that the ultimate authority of the Federal Government was

exercised in the traffic safety field.” House Hearings, supra, at

554, 559, 561.

3. The “Savings” Clause

Another issue that arose in the hearings on the Safety Act was

whether the Act’s preemption provision was intended to occupy the

7

field and preclude all state laws relating to motor vehicle safety.

The sponsors made it clear that preemption would apply only in

areas where DOT chose to act. See, e.g., Traffic Safety: Hearing

on S. 3005 Before the Senate Comm. on Commerce, 8%h Cong.,

2d Sess. 65-66 (1966).

To avoid confusion, Congress clarified that it was not

occupying the field of motor vehicle safety and that the Safety Act

did not establish compliance with federal safety standards as an

affirmative defense in common law actions. Section 1397(k) of the

Act states that “[clompliance with any Federal motor vehicle safety

standard issued under this subchapter does not exempt any person

from any liability under common law.”

This provision is sometimes referred to as the Act's “savings”

clause. See Pet. App. 4. But Section 1397(k) lacks the indicia of

a true savings clause. Indeed, the text, structure, and legislative

history of the Safety Act show the narrow scope of this section and

its inapplicability to federal preemption. First, Section 1397(k) was

not made part of the Safety Act’s preemption provision, but instead

was located five sections later.’ Second, while the title of the

preemption provision (Section 1392(d)) is “Supremacy of federal

standards,” the title of Section 1397(k) is “Continuation of common

law liability” and makes no reference to preemption or federal

supremacy .

Third, the sections on “Preemption” in the congressional

reports make no mention of Section 1397(k), discussing only

Section 1392(d). See H.R. Conf. Rep. No. 89-1919, at 16 (1966);

H.R. Rep. No. 89-1776, supra, at 17. The Conference Report

does not mention Section 1397(k) at all, and the discussion of that

provision in the House Report is under the heading “Prohibited

* When Congress recodified the Safety Act in 1994, both Section

1392(d) and Section 1397(k) were placed in a new section, 49 U.S.C. §

30193, entitled “Relationship to other laws.” Section 1392(d), however,

was placed in 49 U.S.C. § 30103(b), labeled “Preemption,” whereas

Section 1397(k) was placed in an entirely different subsection, 49 U.S.C.

§ 30103(e), whose title (“Common law liability”) makes no reference to

the Supremacy Clause or federal preemption. See Pub. L. No. 103-272,

§ le), 108 Stat. 943 (1993).

Acts and Exemptions.” See H.R. Rep. No. 89-1776, supra, at 22.

Fourth, the floor debates on this section concerned evidentiary

issues exclusively, and made no reference to preemption. See 112

Cong. Rec. 21,487-21,490 (1966).

B. The Early History Of FMVSS 208

Under the broad mandate of the Safety Act, DOT in 1967

promulgated FMVSS 208, which required the installation of manual

seat belts in all new cars. 32 Fed. Reg. 2415 (1967). “[TJhe

safety benefits of wearing seat belts are not in doubt.” MVMA v.

State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 52 (1983). Motor

vehicle occupants often failed to use their seat belts, however, thus

prompting DOT to consider the feasibility of so-called “passive” or

“automatic” restraint systems — including airbags. Between 1969

and 1976, the federal government conducted over 2,000 tests of

such devices to evaluate their utility. Pacific Legal Found. , 593 at

1344,

In its examination of passive restraint systems, DOT repeatedly

expressed its intent “to allow the maximum degree of manufacturer

initiative in developing crash protection systems” (35 Fed. Reg.

7187, 7188 (1970)) and specifically rejected a mandatory airbag

rule (id. at 16,927-16,928). DOT also acknowledged the need for

a gradual, phased-in schedule for amy future passive restraint

requirement in light “of the extreme dislocations, and the attendant

financial hardships, that would be caused by requiring the world

industry * * * to introduce major new systems in substantially all

their passenger cars.” 36 Fed. Reg. 19,255 (1971).

During this formative stage of the federal regulatory program,

DOT proposed a requirement that manufacturers install a passive

restraint system selected in their discretion, but later postponed that

requirement until the 1976 model year. 37 Fed. Reg. 3911 (1972).

In the interim, DOT continued to grant manufacturers the option to

install manual “lap and shoulder belts coupled with an ‘ignition

interlock’ that would prevent starting the vehicle if the belts were

not connected” — an option that nearly all manufacturers exercised.

State Farm, 463 U.S. at 35-36. One year later, DOT suspended its

passive restraint proposal because of the need for further

administrative study. 38 Fed. Reg. 16,072, 16,073 (1973).

9

Responding to a wave of protests from consumers, Congress

intervened in 1974 to supervise the future development of FMVSS

208 and rejected DOT's “ignition interlock” requirement. 15

U.S.C. § 1410b(1). At the same time, Congress declared its strong

preference for traditional seat belt safety systems and provided that

a non-belt safety system would be permissible only if FMVSS 208

gave manufacturers the option to install a seat belt system instead.

1S U.S.C. § 1410b(2)-(3). Congress prohibited DOT from

mandating airbags or any other non-belt safety systems unless it

complied with special hearing procedures and awaited the results of

a review by both Houses of Congress. 15 U.S.C. § 1410b(b)-(f).

This provision reflected Congress’ opposition to inadequately

considered proposals mandating passive restraints (such as airbags)

and Congress’ belief that it “should not require of the automobile

industry and the purchasing public anything more” than the familiar

“seat belt and shoulder harness” restraint system. 120 Cong. Rec.

27,815-27,816, 27,822-27,823 (1974).°

Following this declaration of policy by Congress, DOT

renewed its study of passive restraint systems, including airbags,

but continued to grant manufacturers the “option” to install manual

seat belts instead of passive restraints. 40 Fed. Reg. 16,217,

16,218 (1975). Growing concern over the effectiveness and public

acceptability of passive restraint devices prompted Secretary of

Transportation William Coleman to defer (41 Fed. Reg. 36,494

(1976)) and ultimately to rescind (42 Fed. Reg. 5071 (1977)) a

proposed passive restraint requirement, thereby continuing in effect

the manual “lap and shoulder seat belt option” that had been

utilized by “the vast majority of manufacturers” (41 Fed. Reg.

24,070 (1976); id. at 36,494; 42 Fed. Reg. 5071 (1977)).

Secretary Coleman explained the policy objections to a mandatory

passive restraint requirement (41 Fed. Reg. at 24,071):

in tests to date, have been found to provide no materially

* This legislation “shows that Congress intended manual seat belts

to remain one of the options for complying with federal restraint system

requirements.” Pokorny v. Ford Motor Co., 902 F.2d 1116, 1123-1124

(3d Cir. 1990).

10

greater protection to those individuals who already use lap and

to pay more for their automobiles, without any measurable

benefit * * *.

Moreover, Secretary Coleman was concerned about the

“feasibility” of manufacturing millions of reliable passive restraints.

Id. at 24,072.

The Secretary also justified his decision to reject a passive

restraint requirement by referring to public opinion (Department of

Transportation, The Secretary's Decision Concerning Motor Vehicle

Occupant Crash Protection, at 11-12 (Dec. 6, 1976)):

The cause of safety would not be served by mandating passive

restraints at the present time. Every sampling of public

opinion which has been brought to my attention, including the

analysis of the docket for the public hearing, indicates that a

substantial majority of Americans oppose the Federal

government's mandating passive restraints * * *. There is

widespread and serious concern among members of the public

with respect to the likelihood and consequences of inadvertent

air bag deployment, the possibility that airbags may cause or

exacerbate injuries, and the question of whether airbags will

deploy properly in situations in which they are needed.

Secretary Coleman further determined that mandatory passive

restraint systems would have serious adverse effects on federal

policy goals for motor vehicle safety (id. at 32):

A decision to mandate passive restraints would be unique and

of unprecedented magnitude in the history of Federal involve-

ment in motor vehicle safety. It would involve replacing seat

now in automobiles and with which many people are totally

unfamiliar. It would mean mandating a particular form of

self-protection which (in the case of the air bag) is among the

After considering all of these factors, Secretary Coleman found

that a passive restraint requirement would provoke “widespread

negative public reaction” and precipitate a repeal of the standard by

Congress after the manufacturers had retooled their production

facilities. He concluded that such action “would have disastrous

economic consequences for the entire nation.” Jd. at 11. A

passive restraint requirement would ultimately “constitute a general

setback to the auto safety movement.” /d. at 64.

In 1977, after further hearings, Secretary Coleman's successor,

Brock Adams, reaffirmed that passive restraints should not be

mandated. He concluded that automobile manufacturers should be

required to install some type of passive restraint system in the

future, but specifically rejected a rule that would order immediate

installation of airbags or any other passive restraint system in view

of the severe technological and practical difficulties that such a

requirement would cause. 42 Fed. Reg. 34,295, 34,296 (1977).

Secretary Adams emphasized that “the Department has determined

that a lead time of four full years should precede the requirement

for the production of the first passive-equipped passenger cars.”

Id. at 34,295.

In response to this proposal, Congress intervened again by

declaring its Opposition to a mandatory passive restraint standard

and its continuing approval of manual seat belts. It provided in

DOT's annual appropriation legislation for 1979 and 1980 that

“[nJjone of the funds appropriated under this Act shall be used to

implement or enforce any standard or regulation 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). In forbidding the use of federal funds to mandate any

“occupant restraint system” other than “a belt system,” Congress

distinguished between the familiar and publicly acceptable “active

restraimt system, which is the lap-shoulder belt that we have on cars

today,” and “a passive restraint system, which in practice means

the airbag for large cars, and the automatic seat belt for small

cars.” 125 Cong. Rec. 36,924, 36,926 (1979).

Following the direction of Congress, Secretary of

Transportation Drew Lewis decided against passive restraints in

1981, concluding that manufacturers should “continue to have the

current option of providing either automatic or manual occupant

restraints.” 46 Fed. Reg. 53,419, 53,425 (1981). That decision

was later set aside by this Court on the ground that the Secretary's

\

12

decision was not adequately explained. The Court affirmed,

however, the Secretary’s power to suspend any passive restraint

requirement pending further agency review, State Farm, 463 U.S.

at 57 n.21, and the Secretary promptly did so. 48 Fed. Reg.

39,908 (1983).

On remand, Transportation Secretary Elizabeth Dole conducted

a “thorough review of the issue of automobile occupant

protection,” including a study of the voluminous regulatory record

on the subject. 49 Fed. Reg. 28,962, 28,964, 28,967-28,975,

28 ,984-28,996 (1984). The Secretary again rejected an immediate

mandate of passive restraints. The standard adopted by Secretary

Dole was in effect when Honda manufactured the 1987 Accord.

C. The 1984 Amendment Of FMVSS 208

As amended by Secretary Dole in 1984, FMVSS 208 called

for careful implementation of passive restraints over time. The

final rule explicitly authorized manufacturers to continue to use

manual three-point seat belts on all automobiles manufactured

before September 1, 1986. 49 Fed. Reg. 28,963, 29,009-29,010

(1984). FMVSS 208 also authorized the continued use of manual

seat belts in all automobiles manufactured after September 1, 1986,

if a designated number of States enacted mandatory seat belt use

laws complying with federal requirements. Jd. at 28,963, 28,997-

28,999, 29,010. Thus, seat belts and not airbags were the occupant

restraint system of choice for DOT. Even in the event that state

seat belt use laws were not enacted, FMVSS 208 continued to

authorize a substantial percentage of automobiles to be equipped

with manual seat belts prior to September 1, 1989. Id. at 28,963,

28,999.

Most significantly, the standard adopted by Secretary Dole in

1984 — like the standards adopted by all of her predecessors —

explicitly rejected a mandatory airbag requirement and reaffirmed

the need to encourage automobile manufacturers to develop a

variety of alternative occupant restraint systems. 49 Fed. Reg. at

29,000-29,002. And contrary to petitioners’ suggestion (Pet. Br.

11-12), there is absolutely no indication in the record that Secretary

Dole believed the States could mandate airbags through common

law liability rules. Indeed, in refusing to mandate airbags,

Secretary Dole cited several fundamental considerations of federal

13

safety policy that would be severely undermined by any state-

imposed airbag requirement.

1. The Secretary found (49 Fed. Reg. at 28,985) that there

was substantial uncertainty about the effectiveness of airbags:

Based on field experience through December 31, 1983, * * *

the computed airbag and manual belt effectiveness (as used in

the equivalent cars) for fatalities is now the same. This means

that airbags would not save any more lives than the belt

systems as used in those cars.

The Secretary also identified other serious unresolved safety

problems with the deployment of airbags. /d. at 28,974, 29,001.

2. Secretary Dole found that airbags are “unlikely to be as

cost effective” as other safety devices. 49 Fed. Reg. at 29,001.

She explained that airbags may be “priced much higher than it has

[been] estimated” and that such costs would “further compound”

the safety problems associated with airbags because “the high cost

of replacing an airbag may lead to its not being replaced after

deployment. The result would be no protection for the front seat

occupants of such an automobile.” Jbid.

3. Secretary Dole noted that “[sJeveral technical problems

concerning airbags have been mentioned by manufacturers,

consumers, and the vehicle scrapping industry.” 49 Fed. Reg. at

29,001. Those included hazards from propellants used to inflate

airbags and the danger to small children who may not be properly

restrained and hence may be severely injured by a rapidly

deploying airbag. Thus, “the Department cannot state for certain

that airbags will never cause injury or death to a child.” /d. at

28,992. The Secretary remarked that these unresolved safety

problems made DOT unwilling to “mandate across-the-board

airbags.” Jd. at 29,001.

4. The Secretary expressed reservations about the “public

acceptability” of airbags. She explained that “[s]ome people have

serious fears or concerns about airbags. If airbags were required

in all cars, these fears, albeit unfounded, could lead to a backlash

affecting the acceptability of airbags.” 49 Fed. Reg. at 29,001.

The Secretary added that “these consumer perceptions must be

recognized as real concerns.” Ibid. She emphasized that “[t}he

14

ability to offer alternative devices should enable the manufacturers

to overcome any concerns about public acceptability by permitting

some public choice.” /d. at 28,997.

5. The Secretary decided that a mandatory rule requiring

installation of a particular passive restraint device, such as airbags,

would stifle innovation in occupant protection systems (49 Fed.

Reg. at 29,001):

[DOT] believes that by taking away the manufacturers’

discretion to comply with an automatic occupant restraint

requirement through the use of a variety of technologies, it

creates a number of problems. First, by restricting the

manufacturers, the Department runs the risk of killing or

seriously retarding development of more effective, efficient

occupant protection systems. Similarly, the development of

passive interiors, being pursued by GM, would be stymied

under such an option.

Thus, Secretary Dole specifically found that a mandatory airbag

requirement would be contrary to federal safety goals because it

“runs the risk of killing or seriously retarding the development of

more effective, efficient occupant protection systems.” Jbid.

D. The Subsequent Reviews Of The Occupant Restraint

Standard By Congress, The D.C. Circuit, And DOT

Following Secretary Dole’s decision not to require manu-

facturers to install airbags, the D.C. Circuit reviewed and affirmed

that decision in State Farm Mutual Auto. Ins. Co. v. Dole, 802

F.2d 474 (D.C. Cir. 1986). The court noted that the Secretary’s

“ultimate decision not to require airbags” rested on a meticulous

weighing of competing interests and a specific finding that the high

costs associated with airbags threatened to reduce public safety. /d.

at 487-488 & n.27. The court emphasized that “such details of

cost-benefit analysis are ‘most appropriately entrusted to the

expertise of an agency.’” Jd. at 488; see Public Citizen v. Steed,

851 F.2d 444, 447-448 (D.C. Cir. 1988) (affirming DOT’s 1987

decision extending the option of driver-side-only airbags to

September 1, 1993, and DOT’s finding that serious technical issues

remained unresolved with dual (driver-side and passenger-side)

airbags).

15

Congress later amended the Safety Act in 1991 to require DOT

to modify FMVSS 208 to mandate airbags in 95% of all passenger

cars built after September 1, 1996, and 100% of the cars built after

September 1, 1997. Pub. L. No. 102-240, § 2508, 105 Stat. 2085

(1991). In passing this legislation, Congress noted in Section

2508(d) that it did not seek to change the preemptive effect of

FMVSS 208 for motor vehicles manufactured without airbags

before they were required by federal law. See 49 U.S.C. §

30127(f(2) (“[t}his section and amendments to Standard 208 made

under this section may not be construed as indicating an intention

by Congress to affect any liability of a motor vehicle manufacturer

under applicable law related to vehicles with or without [airbags]”).

Since then, DOT — through the National Highway Traffic

Safety Administration (“NHTSA”) — has undertaken “a

comprehensive plan of rulemaking and other actions * * *

addressing the adverse effects of air bags.” 62 Fed. Reg. 798

(1997) (emphasis added). As early as October 1994, NHTSA noted

the “air bag/infant restraint interaction problem” caused by the

incompatibility of rear-facing infant car seats and passenger-side

airbags. 59 Fed. Reg. 51,158, 51,159 (1994).

Over time, NHTSA has acknowledged broader problems with

airbags, stating that they “are not a cure-all for every type of injury

in crashes” and that airbags “have contributed to serious injuries

and even death to vehicle occupants.” 60 Fed. Reg. 56,554

(1995). The agency has been “extremely concerned * * * about

deaths caused by air bags,” 61 Fed. Reg. 40,784, 40,787 (1996),

observing that “while passenger side air bags are estimated to have

saved 164 lives to date, they have also killed 32 children in

relatively low speed collisions.” 62 Fed. Reg. 798 (1997).’

As a result, NHTSA (i) ordered warnings posted in motor

vehicles about the hazards of airbags and the need to use manual

three-point seat belts to reduce those hazards, 61 Fed. Reg. 60,206

(1996); (ii) allowed manual cut-off switches to be installed, 62 Fed.

Reg. 62,406 (1997); and (iii) authorized manufacturers to “depower

’ NHTSA acknowledged in 1998 that over 100 persons had been

killed by deploying airbags. 63 Fed. Reg. 49,958, 49,959 (1998).

16

all air bags so that they inflate less aggressively.” 62 Fed. Reg.

12,960 (1997). Congress also has mandated, Pub. L. No. 105-178,

§ 7103(a), 112 Stat. 466 (1998), and DOT has proposed, the

development of “advanced airbags” to “cushion and protect

occupants of different sizes, belted and unbelted, [which] would

require air bags to be redesigned to minimize risks to infants,

children, and other occupants,” 63 Fed. Reg. 49,958 (1998); see

also 64 Fed. Reg. 60,556 (1999).

In sum, contrary to the suggestion of petitioners and their

amici (Pet. Br. 7-9; see, e.g., AIEG Br. 7), airbags were not in

1987, and are not today, a costless panacea that was irrationally

resisted by motor vehicle manufacturers. However inevitable the

introduction of airbags may seem from the perspective of 1999, in

1987 (when the Accord at issue here was built) airbags were

perceived as merely one among many occupant restraint systems

whose safety and public acceptability had to be tested.* The debate

over the wisdom of mandatory airbags and the development of

airbag technology continues to the present day. Accordingly, seat

belts were and are DOT’s occupant restraint device of choice;

airbags are merely a supplemental restraint system (see pages 12-

15, supra).

Il. PETITIONERS’ COMMON LAW CLAIM WOULD

FRUSTRATE THE PURPOSES OF FMVSS 208

Petitioners do not dispute that Honda’s 1987 Accord, which

was equipped with a manual three-point lap belt and shoulder

harness, complied fully with FMVSS 208. In particular, the

automobile was not required by FMVSS 208 to have airbags; the

Safety Standard in effect at the time the vehicle was manufactured

granted Honda an option — for safety reasons — to install either

airbags or manual lap and shoulder belts. Indeed, in 1987

Secretary Dole reaffirmed the need for flexibility and choice in

passive restraint systems, 52 Fed. Reg. 10,096 (1987), and noted

that federal safety policy purposefully did not “require

® See Pet. App. 15-16 (“Even if the Secretary's gradual adoption of

an airbag requirement has increased public acceptance of the technology

over time, concerns about public reaction still existed when Geier’s 1987

Honda was manufactured”).

17

manufacturers to install airbags or any other ;

. . particular of

automatic restraint system.” Jd. at 42,441. ~

Petitioners’ effort to impose a mandatory airbag requirement

on Honda under state law conflicts with and undermines this federal

safety policy. As this Court has long held, state law that conflicts

with federal law — either by making it impossible “to comply with

both state and federal requirements,” English v. General Electric

Co., 496 U.S. 72, 79 (1990), or by standing “as an obstacle to the

accomplishment and execution of the full purposes and objectives

of Congress,” Hines v. Davidowitz, 312 U.S. 53, 67 (1941) — is

preempted by the Supremacy Clause. See also International Paper

Co. v. Ouellette, 479 U.S. 481, 494 (1987) (state law “is pre-

empted if it interferes with the methods by which the federal statute

was designed to reach [its] goal”).

In this case, regardless of the scope of the express preemption

provision, petitioners’ common law claims are impliedly preempted

by the Safety Act. It is undisputed that Congress gave DOT

plenary authority to issue uniform national safety standards for

automobiles and that DOT, after a thorough investigation extending

over decades, determined that public safety would be undermined

if airbags were required in the 1987 Accord. It would frustrate the

purpose of this comprehensive federal safety scheme for the States

to second-guess the judgment of this expert federal agency and

impose just such a requirement.

Petitioners’ principal response is to cite the languag

Section 1397(k), the Act’s so-called “savings” clause. Aegis

provision does not preserve or validate petitioners’ claim. This

Court has held for nearly a century that even broadly written

savings provisions do not “save” state law claims that would

conflict with or frustrate the purpose of a federal statute. Any

other reading would cause the federal statute ty “destroy itself.”

pico Pac. Ry. v. Abilene Cotton Oil Co., 204 U.S. 426, 446

Petitioners’ arguments would turn federal ion law

apes Com. They assert that — despite the comprehensiveness of

purpose in reserving to DOT the authority to issue uniform national

standards, and the presence of a broadly worded preemption

18

provision — Congress meant to allow each State, through its

common law, to impose standards different from the federal

standards (and different from those of other States as well). Rather

than a scheme of uniform national standards, the outcome under

petitioners’ regime would be chaos, with standards varying from

State to State — and even within a single State — based on the

case-by-case assessments of lay juries. Congress could not

conceivably have intended that result.

A. Section 1397(k) Does Not Preserve Common Law

Claims That Are Inconsistent With An FMVSS

Petitioners’ reliance on Section 1397(k) of the Safety Act, the

so-called “savings” clause, to defeat implied conflict preemption is

wholly misplaced. Even if, contrary to the text, structure, and

legislative history of the statute (see pages 4-14, supra), Section

1397(k) were viewed as a limitation on the Act’s express

preemption provision, it has no application to an implied

preemption analysis.

This provision indicates, at most, Congress’ intent not to

occupy the entire field of motor vehicle safety, so that common law

claims could continue to be brought in areas not covered by and not

conflicting with a Federal Motor Vehicle Safety Standard. Faced

with similar provisions in other statutes, this Court has consistently

interpreted them in this fashion. In Chicago & N.W. Transp. Co.

v. Kalo Brick & Tile Co., 450 U.S. 311, (1981), for example,

which held that a broadly worded savings clause was inapplicable

where the plaintiff sought to impose common law liability for acts

expressly permitted by a federal agency, the Court explained that

general savings clauses do not allow States to enforce state law

claims that conflict with federal law. Id. at 328. Rather, general

savings clauses are included in federal statutes because, without

them,

it might have been claimed that, Congress having entered the

field, the whole subject of liability * * * had been withdrawn

from the jurisdiction of the state courts, so [the savings clause]

was added to make plain that the Act was not intended to

deprive the state courts of their general and concurrent

jurisdiction.

19

Ibid. (internal quotation marks omitted).

Similarly, in Pennsylvania R.R. v. Puritan Coal Mining Co.,

237 U.S. 121, 129 (1915), the Court found that a savings clause

“was added at the end of the statute — not to nullify other parts of

the Act, or to defeat rights or remedies given by preceding sections

— but to preserve all existing rights which were not inconsistent

with those created by the statute.” And in Abilene Cotton, 204

U.S. at 446, the Court held that a broad savings clause (“[nJothing

in this act contained shall in any way abridge or alter [common

law] remedies” (internal quotations omitted)) could not be read to

save common law rights “the continued existence of which would

be absolutely inconsistent with the provisions of the act.” Such a

reading, the Court instructed, would cause the federal statute to

“destroy itself.” Ibid. This Court has repeatedly adhered to these

pronouncements. See, e.g., American Tel. & Tel. Co. v. Central

Office Tel., Inc., 524 U.S. 214, 227-228 (1998) (relying on and

quoting Abilene Cotton in rejecting a construction of a savings

clause that would have permitted common law claims that were

“‘inconsistent with the provisions of the’” federal statute at issue);

Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383-385

(1992); International Paper Co. v. Ouellette, 479 U.S. 481, 493-

494 (1987); Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207,

223, 230 (1986); Nader v. Allegheny Airlines, Inc., 426 U.S. 290,

298-299 (1976).

Consistent with these precedents (which petitioners neglect to

cite, much less discuss), Section 1397(k) was added to the Safety

Act not to defeat the statutory goal of creating a set of nationally

uniform motor vehicle safety standards, but rather to indicate

Congress’ intent not to preempt the remainder of the field of motor

vehicle safety not covered by and not inconsistent with those federal

standards. This case is a good example: FMVSS 208 expressly

grants, for safety reasons, a choice to manufacturers whether to use

airbags. Section 1397(k) would thereby preserve a common law

claim that an airbag system in a vehicle was negligently

manufactured or installed, because those subjects are not addressed

by — and do not conflict with — any Safety Standard. On the

other hand, it would not preserve a common law action, such as the

claim under review here, seeking to recover damages from a

defendant merely for exercising the federally-granted safety option

20

to utilize a restraint system other than an airbag. Such a lawsuit is

impliedly preempted because it extinguishes a choice granted, as a

matter of safety, by DOT whether to install a particular type of

equipment (airbags). See, e.g., Perry v. Mercedes Benz of North

Am., Inc., 957 F.2d 1257, 1265 (Sth Cir. 1992) (distinguishing a

failure-to-install-airbag claim from a claim that a particular airbag

system was not properly designed, and holding that the latter claim

is not preempted).’

Rather than addressing these precedents, petitioners rely (Br.

33-34, 47-48) on English v. General Elec. Co., 496 U.S. 72

(1990), Goodyear Atomic Corp. v. Miller, 486 U.S. 174 (1988),

and Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984), for the

proposition that Congress somehow intended, through the adoption

of Section 1397(k), to allow state common law to apply unchecked

by any form of federal preemption. But none of the cases cited

involved the Safety Act or even remotely similar regulatory

schemes. In Goodyear Atomic, for example, the Court interpreted

a statute waiving the federal government’s immunity from state

regulation of federal enclaves. In discussing the limits of that

waiver, and whether state workers’ compensation awards would

interfere with a federal program, the Court distinguished between

a State’s “incidental” and “direct” regulation of federal activities.

The Court ultimately concluded that there was “clear congressional

authorization” for the state action (486 U.S. at 182) and that the

“incidental regulatory pressure” of occasional workers’

* This reading of Section 1397(k) is in accord with the early case law

interpreting the Safety Act (which is relied on by petitioners, see Pet. Br.

2 n.2). In the absence of a federal Safety Standard addressing, the same

aspect of performance as a proposed common-law tort standard, Section

1397(k) authorizes a tort action to proceed because the Act does not

;teempt the entire field of motor vehicle safety. See, ¢.g., Schwartz v.

Am.rican Honda Motor Co., 710 F.2d 378, 383 (7th Cir. 1983) (“there

were no federal standards governing the relevant portions of the”

vehicle); Dorsey v. Honda Motor Co., 655 F.2d 650, 656 (Sth Cir. 1981)

(FMVSS’s “are unrelated to several of the design deficiencies developed

by the plaintiffs’ evidence”); Dawson v. Chrysler Corp., 630 F.2d 950

(3d Cir. 1980); Knippen v. Ford Motor Co., 546 F.2d 993 (D.C. Cir.

1976).

21

Id. at 186. In particular, there was no claim in Goodyear Atomic

that state law would frustrate any federal regulation or policy.

The decisions in English and Silkwood are equally beside the

(e.g., 42 U.S.C. §§ 2018, 2021(b), 2021(k)). In Silkwood, the

Court found no preemption of the common law claim at issue

because the Price-Anderson Act — which established an

indemnification scheme for nuclear plant operators held liable under

State tort law — constituted affirmative evidence of Congress’

acceptance of state tort actions (464 U.S. at 251-256)."° As the

Court explained in English, 496 U.S. at 86, “the decision in

Silkwood was based in substantial part on legislative history

Suggesting that Congress did not intend to include in the pre-empted

field state tort remedies for radiation-based injuries.”

These cases stand in marked contrast to the federal scheme

created by the Safety Act — on which the regulatory effects of state

compensatory and punitive damages awards would be direct, not

incidental. See International Paper Co. v. Ouellette, 479 U.S.

481, 498-499 n.19 (1987) (rejecting the contention that

“compensatory damages only require the [defendant] to pay * * *

and thus do not ‘regulate’”); New York Times Co. v. Sullivan, 376

U.S. 254, 277-278 (1964) (holding that common law claims are “‘a

form of regulation’”); San Diego Bldg. Trades Council v. Garmon,

359 U.S. 236, 247 (1959) (“[state}] regulation can be as effectively

exerted through an award of damages as through some form of

preventive relief.”).

In the final analysis, petitioners grossly misconstrue Section

1397(k) of the Safety Act by attributing to Congress the truly

'° Silkwood was a field preemption case; there was no conflict with

a federal regulation. The sole question in the case was whether federal

law preempted state punitive damages awards. It was common ground

among the Justices that Congress intended to permit state tort claims for

compensatory damages. Thus, Silkwood involved the availability of a

particular remedy, not the question whether a state tort action was

foreclosed by federal law.

22

perverse desire to authorize all common law claims even though

they clash with an existing Safety Standard. Thus, as petitioners

read this provision, it would even “save” a common law claim that

a manufacturer acted tortiously by doing something that was

required by federal law or by not doing something that was

prohibited by federal law.

But petitioners cannot explain why Congress would allow the

States to undermine a federal regulatory scheme of national safety

standards so long as they act through their common law and not

through regulatory or statutory enactments. Under this regime, a

jury in California or New York might decide that airbags are

necessary to meet a common law duty of care; while a jury in

Texas or Florida might decide that airbags are dangerous and

breach common law standards in those jurisdictions. The adverse

effects on safety and interstate commerce of this system of

nonuniform standards are clear.

In advancing a construction of the Safety Act that undermines

its carefully drawn system of nationally uniform safety standards,

petitioners fail to heed this Court’s admonition not to interpret a

statute to “destroy itself.” Abilene Cotton Oil Co., 204 U.S. at

446. Their interpretation of Section 1397(k) must therefore be

rejected.

B. Implied Conflict Preemption Is Fully Applicable Under

The Safety Act

Relying again on Section 1397(k) and this Court’s preemption

analysis in Cipollone v. Liggett Group, Inc., 505 U.S. 504, 517

(1992), petitioners contend that the text of the Safety Act provides

a “reliable indicium of congressional intent” to preclude implied

culiink tenella Pet. Br. 35-41. Thus, petitioners assert (id.

at 37-40) that the absence of any reference to preemption of

common law claims in the text or history of the Safety Act or

FMVSS 208, combined with the language of Section 1397(k), show

a congressional “intent not to preempt.” Pet. Br. 39 (emphasis in

original).

Contrary to petitioners’ arguments, neither Section 1397(k)

nor the express preemption provision in the Safety Act precludes

application of this Court’s traditional principles of implied conflict

23

Preemption. As discussed above (at pages 6-8), Section 1397(k) is

had observed (SOS U.S. at 517):

When Congress has considered the issue of implied pre-

respect to state authority,” Malone v. White Motor Corp. , 435

U.S. [497], at 505 [(1978)}, “there is no need to infer

congressional intent to pre-empt state laws from the

substantive provisions” of the legislation.

i The Court rejected as entirely “without merit” any

interpretation of this sentence that would preclude an implied

preemption inquiry in the face of an express preemption clause.

514 U.S. at 285. “The fact that an express definition of the pre-

emptive reach of a statute ‘implies’ — i.e., supports a reasonable

inference — that Congress did not intend to pre-empt other matters

possibility of implied preemption.” Ibid. Congressional intent is

ultimately the “touchstone” in determining whether implied

preemption is foreclosed. Malone, 435 U.S. at 504.

Thus, the Court held in Myrick that the express preemption

eae tee “obviate the need for analysis

of [the] * * * statute’s [implied] pre-emptive effects.” 514 U.S. at

285. The Court in that case considered on the merits the

respondent's implied preemption argument under the Safety Act,

although it found the claim “ultimately futiic” because there was no

conflict between the respondent's tort suit and the suspended

standard at issue, FMVSS 121, which governed antilock brakes on

trucks. 514 U.S. at 285; see also Pet. App. 13 (“in Myrick the

24

Supreme Court engaged in implied pre-emption analysis of the

Safety Act”)."'

This Court’s subsequent precedents are in accord. For

example, in Medtronic, the plurality opinion by Justice Stevens —

which in the face of an express preemption clause found no express

preemption under the Medical Device Amendments of 1976 to the

Federal Food, Drug, and Cosmetic Act — pointedly observed that

common law claims might still be “preempted under conflict

preemption analysis.” 518 U.S. at 503; see also id. at 507 (Breyer,

J., concurring) (citing “ordinary principles” of conflict

preemption). And in Boggs v. Boggs, 520 U.S. 833 (1997), the

Court decided the case on the basis of implied conflict preemption

under the Employee Retirement Income Security Act even though

that statute has an express preemption clause. Indeed, the Court

has often considered (and accepted) implied preemption arguments

in cases involving federal statutes with express preemption

provisions.”

At the end of the day, it is hard to imagine any reason why

Congress, simply by including an express preemption provision in

" The Court in Myrick also noted that even in Cipollone, “just two

paragraphs after the [misinterpreted] passage * * * [the Court] engaged

in a conflict pre-emption analysis of the Federal Cigarette Labeling and

Advertising Act * * * and found ‘no general, inherent conflict between

federal preemption of state warning requirements and the continued

vitality of state common law damages actions.*” 514 U.S. at 288-289.

" See, e.g., Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 142-

143 (1990); Northwest Cent. Pipeline Corp. v. Kansas Corp. Comm'n,

489 U.S. 493, 509-522 (1989). In Jones v. Rath Packing Co., 430 U.S.

519 (1977), the Court concluded that, although the express preemption

provision of the Fair Packaging and Labeling Act, 15 U.S.C. § 1461, did

not preempt the state law at issue, the Supremacy Clause prohibited

enforcement of that law because it conflicted with the federal statute and

prevented “the accomplishment and execution of the full purposes and

objectives of Congress.” Jd. at 526, 540-543 (internal quotation marks

omitted). The Court held that “Congressional enactments that do not

exclude all state legislation in the same field nevertheless override state

laws with which they conflict.” Jd. at 525-526.

25

the Safety Act, would have wanted to authorize the States to impose

requirements that conflict with or frustrate the purposes of an

FMVSS. Congress often includes an express preemption provision

in a statute because it wants to preempt state law more broadly than

would occur under implied preemption principles. It is absurd to

assume that Congress intends to eliminate the constitutional baseline

of implied preemption (see Brown v. Hotel & Restaurant

Employees, 468 U.S. 491, 501 (1984)) when it legislates to give a

federal statute additional preemptive effect."

C. Petitioners’ Common Law Claim Would Frustrate The

Purpose Of DOT’s 1984 Decision And Would

Undermine Congress’ Goal Of Creating Uniform

National Standards

Turning finally to the merits of the preemption issue before the

Court, petitioners try to show that their common law “no airbag”

claim somehow does not conflict with or undermine FMVSS 208.

Pet. Br. 41-50. But, as al) five federal courts of appeals to

consider the issue have concluded, a common law standard such as

that proposed by petitioners is impliedly preempted because it

would punish a manufacturer with massive tort liability for

exercising a federally granted option not to install airbags in its

automobiles. Petitioners’ claim would stand “as an obstacle to the

accomplishment and execution of the full purposes and objectives

of Congress” in passing the Safety Act, Hines, 312 U.S. at 67, and

would “interfere{] with the methods by which th{at) federal statute

was designed to reach [its] goal.” Ouellette, 479 U.S. at 494.

In this case, as the Solicitor General has explained (see U.S.

Br. 15-29), a collision between state and federal law is inevitable.

The central feature of the federal safety program codified im

FMVSS 208 is a carefully calibrated plan to provide the automobile

industry with occupant restraint options. See Pokorny, 902 F 20 at

"® Certainly, when it enacted the Safety Act in 1966, Congress could

Se ee ne oe ee

Section 1397(k) in the Act would eliminate implied conflict preemption,

which this Court had long held occurs by direct operation of the

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

373 U.S. 132, 142-143 (1963).

26

1124 (“flexibility and choice is an essential element of the

regulatory framework established in Standard 208"). As the D.C.

Circuit found (Pet. App. 14-16) and as we described in detail above

(at pages 12-14), DOT’s goal was to provide design flexibility over

time to foster technological innovation that would make passive

restraint systems acceptable to the general public. Moreover, DOT

sought to encourage manufacturers to experiment with different

passive restraint technologies, rather than to mandate “all airbag”

fleets, in order to develop empirical data concerning the relative

effectiveness of various restraint systems.

The element of “choice” in the federal program was,

therefore, not an expression of neutral indifference to airbags by

DOT, but a purposeful element of the program designed to address

the serious, substantive doubts about the effectiveness, public

acceptability, and feasibility of requiring the industry to adopt

airbags prematurely. In view of the consumer (and congressional)

opposition to passive restraints — particularly airbags — DOT

deliberately conferred flexibility on manufacturers to allow them to

introduce new restraint technology on a gradual basis.

By contrast, the state law tort standard advocated by petitioners

would punish automobile manufacturers for not taking the very step

that the federal program refused to mandate: installing airbags in

1987-model-year automobiles. The effect of upholding such

liability would be directly to nullify the policy balances that are at

the heart of FMVSS 208. It is difficult to imagine a clearer

example of state law acting as an “obstacle” to the

“accomplishment and execution” of a federal administrative

program — a program with “an intricate and contentious history of

over 20 years” that has involved intensive administrative and

congressional attention and effort. Wood, 865 F.2d at 398. During

that time, “[mJost of this national controversy has concerned the

very issue which underlies [petitioners’] claim, namely, * * *

whether vehicles should be equipped with ‘passive restraints’ * *

* such as airbags.” Jd. at 399.

conflict with FMVSS 208 in several direct and obvious ways:

1. The imposition of massive tort liability for the failure to

install airbags in automobiles that comply with FMVSS 208 would

27

strip away an option (and attendant manufacturing flexibility) that

Congress and DOT believed to be essential to achieve federal

policy goals. See Pokorny, 902 F.2d at 1124-1125; Taylor, 875

F.2d at 827; Pet. App. 14 (DOT was concerned that “not affording

manufacturers discretion to install an automatic occupant restraint

system” would undermine “public safety”). Among other things,

DOT sought to encourage “experimentation with designs for even

safer systems.” /d. at 15.

Petitioners’ attempt to mandate airbags — and thus eliminate

the “several options” authorized by federal law, Pet. App. 15 —

cannot survive application of this Court’s longstanding precedents

holding that any state law that removes or restricts an option

granted by a federal reguiation conflicts with federal law and is

preempted. In Fidelity Fed. Sav. & Loan Ass'n v. de la Cuesta,

458 U.S. 141, 155 (1982), for example, the Court held that a

option of including “due-on-sale clauses in their contracts”

clauses were unenforceable. California common law was

preempted because it purported to give “the California courts * *

* [authority to] forbid{] a federal savings and loan to enforce a due-

on-sale clause solely ‘at its option’ and * * * deprived the lender

of the ‘flexibility’ given it by the” federal regulation. Ibid. See

also Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 708-709

(1984) (state law cannot deprive regulated entities of “flexibility

and discretion” deliberately conferred by federal law); Lawrence

County v. Lead-Deadwood School Dist., 469 U.S. 256, 260-261,

270 (1985) (state law is preempted to the extent it eliminates

“flexibility” contemplated by federal law).

2. A common law airbag rule would punish automobile

manufacturers — in an unforeseeable, retroactive manner and with

unprecedented severity — for exercising a right granted to them by

federal law. The States cannot impose common law damages,

including punitive damages, on parties for doing what federal law

“authorized them to do.” Kalo Brick, 450 U.S. at 318, 326-330 (a

State cannot award damages on account of a railroad abandonment

approved by the ICC); Farmers Educ. & Coop. Union v. WDAY,

Inc., 360 U.S. 525 (1959).

28

3. Punishing manufacturers for failing to install airbags at a

time when the federal government deliberately refused to mandate

such equipment would clash directly and irreconcilably with the

federal timetable for phasing in passive restraints:

[I}mposition of an air bag requirement where none previously

existed would conflict with the effective dates for the

implementation of standard 208 and the purpose of gradually

phasing in passive or automatic restraint systems. Clearly,

such a result “stands as an obstacle” to the methods chosen by

the Secretary of Transportation to administer the Act, and is

incompatible with the federal regulations.

Schick v. Chrysler Corp., 675 F. Supp. 1183, 1186 (D.S.D. 1987);

see Pet. App. 15 (by “gradually phasing in airbags” DOT sought

to “allow[] consumers to adjust to the new technology”).

4. Application of a common law standard that conflicts with

FMVSS 208 would “destroy the national uniformity of the federal

standard.” Wood, 865 F.2d at 412. Instead of uniformity, some

States could punish manufacturers for not having four-point seat

belts, others could require three-point seat belts, yet others frontal

airbags (driver-side or passenger-side, front or rear), and still

others motorized seat belts — or some combination of these and a

host of other restraint devices. See Kalo Brick, 450 U.S. at 326

(“A system under which each State could, through its courts,

impose * * * its own * * * requirements could hardly be more at

odds with the uniformity contemplated by Congress”). The

“unthinkable” situation feared by President Johnson 30 years ago

(“50 standards for 50 different States” (112 Cong. Rec. 14253

(1966)) could become a reality.

5. Petitioners’ position cannot be defended by the assertion

that there is no frustration of Congress’ purpose because both the

federal regulatory scheme and the state common law seek to

promote “safety.” To reduce this carefully calibrated federal

program to such a nebulous generalization is to suggest that the

States are free to mandate any requirement that a lay jury is

prepared to characterize as reasonably conducive to product safety

— no matter what its effect on the federal program. But this Court

expressly rejected that proposition in Ouellette, 479 U.S. at 494,

explaining that “it is not enough to say that the ultimate goal of

29

both federal and state law is to eliminate [a risk to the public]. A

State law also is preempted if it interferes with the methods by

which the federal statute was designed to reach this goal.” As the

First Circuit observed in Wood, 865 F.2d at 408:

Even though the goal of [plaintiff's] design defect action might

be the same as that of the Safety Act — that is, to increase

automobile safety — [plaintiff's] theory of recovery is

preempted by FMVSS 208 and the Safety Act because it

interferes with the method by which Congress intended to meet

this goal.

At bottom, “improving [automobile] safety does not admit to

easy solution” and requires “considerable expertise.” State Farm,

463 U.S. at 33. In the course of lengthy and comprehensive

regulatory reviews during the 1970s and 1980s, the Secretaries of

Transportation exercised that expertise and repeatedly concluded

that a mandatory airbag requirement for automobiles would be

contrary to federal safety goals because airbags present

countervailing safety risks. As a result. in 1984 DOT expressly

made airbags optional and thereby estabiished a “policy of

encouraging both public acceptance of the airbag technology and

experimentation with better passive restraint systems.” Pet. App.

15. Secretary Dole’s decision thus specifically granted Honda the

option not to install airbags in its 1987 Accord.

Since FMVSS 208 was amended by Secretary Dole in 1984,

Congress, the courts, and DOT have reaffirmed the need for

federal primacy in setting occupant restraint policies, as airbag

technology has evolved and the benefits and dangers of airbags

have become manifest. There is no room for the States to

intervene to decide, for example, that manual cut-off switches for

airbags — which are expressly authorized by DOT to address the

risks posed to certain individuals by deploying airbags (see page

15, supra) — are unreasonably dangerous.

Allowing common law claims to set aside a determination of

DOT's safety policies would unduly interfere with the regulatory

means authorized by Congress to achieve the Safety Act’s stated

goals. In this case, DOT determined that federal safety policy

required granting manufacturers the option whether to install

airbags in 1987-model-year automobiles. Petitioners cannot, more

30

than a decade after the fact, second guess that judgment under state

law. The Supremacy Clause will not permit that result.

CONCLUSION

The judgment of the court of appeals should be affirmed

because petitioners’ common law claim is impliedly preempted by

the Safety Act and FMVSS 208.

Respectfully submitted.

HUGH F. YOUNG, JR. KENNETH S. GELLER

Executive Director Counsel of Record

Product Liability Advisory ERIKA Z. JONES

Council, Inc. JOHN J. SULLIVAN

1850 Centennial Park Drive Mayer, Brown & Platt

Reston, Virginia 22091 1909 K Street, N.W.

(703) 264-5300 Washington. DC 20006

(202) 263-3000

NOVEMBER 1999

APPENDIX

ee

Eaton Corporation

Eli Lilly and Company

Emerson Electric Co.

Estee Lauder Companies

Exxon Corporation, U.S.A.

FMC Corporation

Ford Motor Company

Fortune Brands, Inc.

Freightliner Corporation

Gates Corporation, The; Stant Corporation

General Electric Company

General Motors Corporation

Georgia-Pacific Corporation

Glaxo Wellcome Inc.

Global Industrial Technologies, Inc.

Goodyear Tire & Rubber Company, The

Great Dane Limited Partnership

Guidant Corporation

Har!ey-Davidson Motor Company

Heil Company, The

Hoechst Marion Roussel, Inc.

Honda North America, Inc.

Hyundai Motor America

International Paper Company

Isuzu Motors America, Inc.

Johnson & Johnson

Johnson Controls, Inc.

Joseph E. Seagram & Sons, Inc.

Kawasaki Motors Corp., U.S.A.

Kolcraft Enterprises, Inc.

Kraft Foods, Inc.

Loewen Group International, Inc.

Lucas Variety

Lucent Technologies, Inc.

Mack Trucks, Inc.

Mazda (North America), Inc.

Medtronic, Inc.

Melroe Company

Mercedes-Benz of North America, Inc.

Michelin North America, Inc.

A-2

Miller Brewing Company

Mitsubishi Motors R. & D. of America, Inc.

Navistar International Transportation Corp.

Nissan North America, Inc.

O.F. Mossberg & Sons, Inc.

Otis Elevator Co.

PACCAR Inc

Panasonic Company

Taylor Wharton Gas Equipment, A Division of Harsco

Tenneco Automotive

Terex Corporation

Textron Inc.

Toro Company, The

Toshiba America Incorporated

Toyota Motor Sales, USA, Inc.

A-)

TRW Inc.

UST (U.S. Tobacco)

Volkswagen of America, Inc.

Volvo Cars of North America, Inc.

Vulcan Materials Company

Whirlpool Corporation

Yamaha Motor Corporation, U.S.A.

A-4