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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2000
- **Citation:** 529 U.S. 861

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0277%3A15. Public record. Not legal advice.