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

-

No. 98°1811

IN THE

Supreme Court of the United States

ALEXIS GEIER, ef. al..

Petitioners,

AMERICAN HONDA MOTOR COMPANY, INC.. ef ai..

Respondents.

On Writ of Certiorari to the

United States Court of Appeals for the

District of Columbia Circuit

BRIEF OF WASHINGTON LEGAL FOUNDATION

AS AMICUS CURIAE

IN SUPPORT OF RESPONDENTS

DANIEL J. POPEO LAWRENCE S. EBNER

RICHARD A. SAMP (Counsel of Record)

WASHINGTON LEGAL MONICA A. AQUINO

FOUNDATION McKENNA & CUNEO.

2009 Massachusetts Ave, NW me

Washington, DC 20036 1900 K Street, NW

(202) 588-0302 Washington, DC 20006

(202) 496-7500

Date: November 19, 1999

BBEST AVAILABLE COPY

“>

TABLE OF CONTENTS

STATEMENT OF THE CASE

SUMMARY OF ARGUMENT

PREEMPTION OF STATE TORT LAW IS

ULTIMATELY AN ISSUE OF CONGRES-

SIONAL INTENT, AND AN INTENT TO

PREEMPT GEIER'S ACTION CAN BE

A FINDING OF PREEMPTION UNDER THE

NARROW CIRCUMSTANCES OF THIS CASE

DOES NOT UNDERMINE THE VIABILITY OF

STATE TORT LAW

. THE CONTENTION THAT PRODUCT SAFETY

[IS MORE FAIRLY DEALT WITH THROUGH

COMMON-LAW ACTIONS THAN THROUGH

FEDERAL ADMINISTRATIVE ACTION IS

MERITLESS, IN ADDITION TO BEING

Page

IV. FEDERAL AGENCIES SHOULD NOT BE

REQUIRED TO PREDICT WHA? UNKNOWN

FUTURE TORT CLAIMS MIGHT CONFLICT

WITH THE STATUTES, REGULATIONS, AND

PROGRAMS THEY ADMINISTER ........

CUBMUBARIN 600 60a tb 0 0 'e-Sue sie eee

TABLE OF AUTHORITIES

Page

Cases:

Allis-Chalmers Corp. v. Lueck,

i iiss owas» 66s 0 6 4 12

Boyle v. United Techn. Corp.,

a eat c once eeee eee 12

California Fed. Sav. and Loan Ass'n v. Guerra,

SE ee 7

CSX Transp., Inc. v. Easterwood,

EEE PP ee 12

Cipollone v. Liggett Group, Inc.

diss be p's s 6 4.0 0 66 0 8 passim

English v. General Electric Co.,

eG da 669-40 0 0 sd e-0 6 0.0606 6

Gade v. Nat'l Solid Wastes Management Ass'n,

EE TPP TEE ETe 6

Hines v. Davidowitz,

es 6 OG 6 as os ose be o's 8

Ingersoll-Rand Co. v. McClendon,

RR Ee ee ee 12

Int'l Brotherhood of Electrical Workers

v. Hechler, 481 U.S. 851 (1987) ............ 12

Malone v. White Motor Corp..,

al aa able o bos «0.0. 6 eee 6

Medtronic, Inc. Lohr,

S18 U.S. 470 (1996) ........... 6, 12, 19, 20, 22

Metropolitan Life Ins. Co. v. Taylor,

a Ee bal els cw se 6:4. 0.00.0% 12

Int'l Paper Co. v. Ouellette,

a) a5 6 5 66 60.04 680 « 12

Ortiz v. Fibreboard Corp.,

ee ees 15

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

957 F.2d 1257 (Sth Cir. 1992)............4.. 10

Rice v. Sante Fe Elevator Corp.,

RR ete: Sot 6-7

San Diego Bldg. Trades Council v. Garmon,

OP ee eo eee ee 13

United Steelworkers of America, AFL-CIO-

CLC v. Rawson, 495 U.S. 362 (1990) ......... 12

Vermont Yankee Nuclear Power Corp. v.

Natural Resources Defense Council,

Ge Ga Sa ED 6 ho cewsaeateaewest oa 22

Statutes and Coenstitutiona! Provisiens:

U.S. Const., art. VI, cl. 2 ("Supremacy Clause") ... 7

Administrative Procedure Act ............... 21

5 ee et ks abiras a Cues eee 21

National Traffic and Motor Vehicle Safety Act

ea fg PROP ee Ce ere ee passim

Public Health Cigarette Smoking Act of 1969 ..... 11

Miscellaneous:

Robert A. Carp and Ronald Stidham, Judicial

Process in America, (4th ed. 1998) ........... 15

Donovan Leisure Newton & Irvine ADR Practice

Book, 605 PLI/Lit 947 (1999) .............. 16

Robert B. Leflar & Robert S. Adler, The Preemp-

tion Pentad: Federal Preemption of Products

Liability Claims After Medtronic,

Oe leis RUUD, 0 ow 64.0 sues ces ks 7

John Burritt McArthur, The Strange Case of Amer-

ican Civil Procedure and the Missing Uniform

Discovery Time Limits, 24 Hofstra

*— KF FRA Pea eos a> 16

Brian Ostrom and Neal Kauder, Examining the

Work of Staite Courts, 1994: A National Per-

spective from the Court Statistics Project,

National Ctr. for State Courts (1996) ......... 16

Scott D. Wiener, Note, Popular Justice: State

Judicial Elections and Procedural Due Process,

31 Harv. C.R.-C.L. L. Rev. 187 (1996) ....... 15

Timothy Wilson, Federalism Issues in “No Airbag”

Tort Claims: Preemption and Reciprocal Comity,

61 Notre Dame L. Rev. 30 (1986) ........... 17

Asbestos Litigation Problems, Hearing of the

Subcomm. on Admin. Oversight and the Courts,

Senate Committee on the Judiciary (1999) ...... 15

RESTATEMENT (THIRD) OF TorTs (1998) ........ 13

49 Fed. Reg. 28962, 29001 (July 17, 1984) ...... ll

IN THE

SUPREME COURT OF THE UNITED STATES

No. 98-1811

ALEXIS GEIER, ef. ai.,

Petitioners,

Vv.

AMERICAN HONDA MOTOR COMPANY, INC., ef ai.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals for the

District of Columbia Circuit

BRIEF OF WASHINGTON LEGAL FOUNDATION

AS AMICUS CURIAE

IN SUPPORT OF RESPONDENTS

INTERESTS OF AMICUS CURIAE

The Washington Legal Foundation (WLF) is a Wash-

ington, D.C.-based nonprofit public interest law and policy

center with supporters in all 50 states.’ WLF devotes

substantial resources to defending and promoting free enter-

' Pursuant to S. Ct. R. 37.6, WLF hereby affirms that no counsel for

either party authored any part of this brief, and that no person or entity,

other than WLF, its supporters, and its counsel, made a monetary

contribution to the preparation or submission of this brief.

2

prise, individual rights, and a limited and accountable

government.

To that end, WLF has appeared before this and other

state and federal courts in cases involving preemption issues,

seeking to point out the economic inefficiencies created

when multiple layers of government seek simultaneously to

regulate the same business activity. See, e.g., Medtronic,

Inc. v. Lohr, 518 U.S. 470 (1996); International Assoc. of

Independent Tanker Owners v. Locke, No. 98-1706 (dec.

pending).

WLF is particularly concerned that the American

economy suffers, and public safety or health can be

jeopardized, when state law, including state tort law,

imposes upon industry an unnecessary layer of regulation

that obstructs or frustrates the objectives or operation of

specific federal regulatory programs, such as the National

ey ee ee Act") at issue

re.

WLF supports each of the arguments raised by

Respondents in their brief. WLF is filing separately in

order to focus on arguments raised in the Brief Amicus

Curiae of Robert B. Leflar, Robert S. Adler, Michael

Green, and Joseph A. Page (the “Leflar Brief"). WLF

strongly disagrees with the Leflar Brief's proposal that the

Court's long-standing preemption jurisprudence be

overtumed and replaced with a regime under which implied

conflict preemption would be “narrowly circumscribed."

Leflar Br. 6. WLF submits this brief in support of

Respondents with the written consent of all parties. The

written consents are on file with the Clerk of the Court.

3

STATEMENT OF THE CASE

In the interest of judicial economy, WLF hereby

incorporates by reference the Statement of the Case

contained in Respondents’ Brief.

In brief, Petitioner Alexis Geier was injured while

driving a 1987 Honda Accord -- which did not have an

airbag -- when it crashed into a tree. Petition Appendix

("Pet. App.") 2. She filed suit against Respondents

American Honda Motor Company, ef al. ("Honda"),

alleging that the car was defectively designed because it did

not include an airbag. Jd.

The United States Court of Appeals for the District of

Columbia Circuit affirmed the district court's grant of

summary judgment to Honda, finding that Geier's design

defect claims were impliedly preempted by federal law.

Pet. App. 1-16. The appeals court held that allowing those

claims to continue would conflict with federal law by

frustrating the implementation of specific passive restraint

system policies adopted by the National Highway Traffic

Safety Administration ("NHTSA") pursuant to the Safety

Act. Id. at 15-16.

Geier thereafter filed a petition for a writ of certiorari,

noting that while the decision of the appeals court was

consistent with the decisions of other federal appeals courts,

it conflicted with the decisions of several state supreme

courts on this precise preemption issue. The Court granted

the petition on September 10, 1999.

4

SUMMARY OF ARGUMENT

Preemption of state tort Jaw is ultimately an issue of

congressional intent. Once Congress's preemptive intent has

been identified, it is not the role of the courts to construe

preemption provisions broadly or narrowly, based (for

example) on the types of policy considerations identified in

the Leflar Brief. Because (as demonstrated by Honda in its

brief) tort suits based on “no airbag" claims stand as an

obstacle to the accomplishment and execution of the full

purposes and objectives of Congress, such suits are

preempted by operation of the Supremacy Clause of the

Constitution.

In any event, the policy arguments raised in the Leflar

Brief are not well-founded. The authors of the Leflar Brief

assert that a finding of preemption in this or similar cases

would undermine the viability of state tort law. But that

assertion overlooks the narrowness of the preemption

argument being made by Honda in this case. Honda limits

its argument to those few cases (as here) in which allowing

tort suits to go forward would conflict with motor vehicle

safety standards adopted by NHTSA. For example, Honda

does not allege that federal law preempts claims that

installed airbags were defectively designed, because no

NHTSA standard grants manufacturers the option of

adopting a particular airbag design.

Nor is there any merit to the Leflar Brief's contention

that common-law tort suits can address product liability

concerns more efficiently and fairly than can federal

administrative action. Indeed, the available evidence

suggests just the opposite: federal administrative agencies

can resolve safety issues more swiftly and have resources

5

available to them (including, e.g., expertise, experience,

information-gathering powers, national perspective, and

funding) that dwarf the resources available to any trial

factfinder. The Leflar Brief also asserts that common-law

tort actions serve interests not served by federal regulatory

programs -- in particular, compensation of the injured. But

to the extent that such actions interfere with federal policy

on airbag installation, preemption is clearly mandated under

existing case law, regardless whether the actions serve

interests distinct from those served by the federal programs.

Finally, there is no basis for the Leflar Brief's argument

that implied conflict preemption should be limited to those

cases in which a federal agency has conducted notice-and-

comment proceedings and has affirmatively concluded that

preemption is warranted. The argument overlooks a key

aspect of federal preemption: it is Congress and the

operation of the Supremacy Clause that determine the

preemptive scope of federal law. Once NHTSA has

established a federal motor vehicle safety standard, it is not

NHTSA's role to determine whether to permit states to

enforce laws that conflict with that standard.

ARGUMENT

I. PREEMPTION OF STATE TORT LAW IS

ULTIMATELY AN ISSUE OF CONGRESSIONAL

INTENT, AND AN INTENT TO PREEMPT

GEIER'S ACTION CAN BE INFERRED HERE

Whether the federal government has preempted an

assertion of regulatory authority by state or local govern-

ments in a given instance is ultimately an issue of the intent

of Congress and the operation of the Supremacy Clause. As

6

this Court has repeatedly emphasized, “Pre-emption

fundamentally is a question of congressional intent... .”

English v. General Electric Co., 496 U.S. 72, 78-79 (1990).

Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516 (1992)

("'[t}he purpose of Congress is the ultimate touchstone’ of

preemption analysis") (quoting Malone v. White Motor

Corp., 435 U.S. 497, 504 (1978)); Medtronic, Inc. v. Lohr,

518 U.S. 470, 486-87 (1996) ("any understanding of the

scope of a pre-emption statute must rest primarily on ‘a fair

understanding of congressional purpose.'") (emphasis in

original) (quoting Cipollone, 505 U.S. at 530 n.27 (opinion

of Stevens, J.)).

In other words, it is the role of Congress, not a court,

to define how broad or narrow a federal statute's preemptive

reach should be. Of course, the courts look to a variety of

sources’ and employ a variety of interpretive techniques in

attempting to discern what Congress intended. But once

Congress's preemptive intent has been identified, it is not

the role of the courts to construe preemption provisions

broadly or narrowly, based (for example) on the types of

policy considerations identified in the Leflar Brief. A

court's “task in all pre-emption cases is to enforce the ‘clear

and manifest purpose of Congress.'" Gade, 505 U.S. at

111 (Kennedy, J., concurring in part and concurring in the

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

* "Congress' intent, or course, primarily is discerned from the

language of the pre-emption statute and the ‘statutory framework’

surrounding it." Medtronic, 518 U.S. at 486 (quoting Gade v. Nat'l Solid

Wastes Management Ass'n, SOS U.S. 88, 111 (1992) (Kennedy, J.,

concurring in part and concurring in the judgment)).

7

U.S. 218, 230 (1947)). That is exactly what the D.C.

Circuit did here.’

Congress's intent to preempt state and local law may be

explicitly stated in its statutory language or implicitly

contained in the statute's structure or purpose. Cipollone,

505 U.S. at 516. State law is impliedly preempted if: (1)

it actually conflicts with federal law; or (2) federal law so

thoroughly occupies a legislative field "as to make

reasonable the inference that Congress left no room for the

States to supplement it." Jd. (citations omitted). State law

"actually conflicts" with federal law "either because

compliance with both federal law and state regulations is a

physical impossibility, or because the state law stands as an

obstacle to the accomplishment and execution of the full

purposes and objectives of Congress." California Fed. Sav.

and Loan Ass'n v. Guerra, 479 U.S. 272, 281 (1987)

(emphasis added and internal quotations omitted).

The D.C. Circuit held that Petitioners’ tort action is

barred under the second prong of conflict preemption -- that

is, the tort action "stands as an obstacle to the

. * In Robert B. Leflar & Robert S. Adler, The Preemption Pentad:

Federal Preemption of Products Liability Claims After Medtronic, 64 Tenn.

L. Rev. 691, 694-95 (1997), two of the authors of the Leflar Brief

denigrate this Court’s repeated emphasis on the importance of

congressional intent in analyzing preemption issues. They refer to it as a

“mantra” ~ “a formulaic incantation of black-letter law” that “[e]very

court addressing a preemption recites.” Jd. at 694. WLF respectfully

disagrees. It is beyond dispute that when Congress chooses to preempt

state and local regulation of commerce, it is entitled to do so under the

Supremacy Clause. U.S. Const., art. VI, cl. 2; Cipollone, 505 U.S. at

516. Accordingly, courts have no legitimate basis upon which to

determine preemption issues other than by examining congressional intent.

accomplishment and execution of the full purposes and

objectives of Congress." Pet. App. 13-14. The appeals

court held that “allowing design defect claims based on the

absence of an airbag for the model-year car at issue would

frustrate the Department [of Transportation's] policy of

encouraging both public acceptance of the airbag technology

and experimentation with better passive restraint systems,"

id. at 15, and that Congress (through the Safety Act) had

authorized the Department to adopt such policies. Id. at 2.

Honda's brief thoroughly explains why Petitioners’ action

would (if allowed to go forward) "frustrate" federal policy,

and thus WLF will not repeat that explanation here.

The Leflar Brief does not seriously dispute the appeals

court's "frustrat[ion]" finding. Rather, it advances several

policy arguments in support of its contention that the bar

should be raised for defendants asserting that state tort

actions filed against them are preempted.* Those policy

* The Leflar Brief asserts:

Reasonable minds may differ on the merits of NHTSA's choice of

method. The question before the Court is not whether NHTSA's

phase-in strategy was justified. It is whether damage awards would

seriously disrupt the federal regulatory program. The Court of

Appeals failed to address this question.

Leflar Brief 16 (emphasis added).

For the past 60 years, however, the applicable test, often repeated by

this Court, has been whether state law “stands as an obstacle to the

accomplishment and execution of the full purposes and objectives of Con-

gress.” Hines v. Davidowitz, 312 U.S. 52, 67 (1941) (citing Savage v.

Jones, 225 U.S. 501, 533 (1912)). It appears that Prof. Leflar, et al., in

their efforts to narrowly circumscribe implied conflict preemption, simply

have invented their own test, which would preclude preemption even

(continued...)

—_—_

9

arguments are not well-founded. More importantly, those

arguments simply are not relevant to the issue before the

Court: whether it can reasonably be inferred that Congress

intended to preempt torts actions such as Petitioners’.

Il. A FINDING OF PREEMPTION UNDER THE

NARROW CIRCUMSTANCES OF THIS CASE

DOES NOT UNDERMINE THE VIABILITY OF

STATE TORT LAW

The Leflar Brief's assertion that "implied preemption in

products liability cases should be narrowly circumscribed"

(Leflar Br. 6) is premised on the authors' view that a finding

of preemption in this or similar cases would undermine the

viability of state tort law. They assert that "a narrowly

cabined implied preemption doctrine” is necessary to

“allow[] for the coexistence of federal administrative

regulation and state tort law." Jd. (emphasis added). They

assert, "Congress assumed the continued existence of state

tort law" when it enacted consumer protection laws in the

1960s and 1970s, and "/pjermitting this traditional tort

regime to continue can partially ameliorate various limi-

tations of administrative agencies." Jd. (emphasis added).

The Leflar Brief is starting from a faulty premise: its

authors are simply incorrect in assuming that a finding that

Petitioners’ tort claims are preempted would in some way

undermine the "traditional tort regime." To the contrary,

the appeals court's holding has no effect on many other

types of potential design-defect claims that could be asserted

*(...continued)

where, as the court of appeals found here, state law would frustrate a

federal agency’s full implementation of a federal statute.

10

against automobile manufacturers, because it is not often

true that such claims stand as an obstacle to the

accomplishment and execution of the full purposes and

objectives of Congress.

Indeed, while the federal appeals courts are in agree-

ment that “no airbag" claims (such as those raised by Peti-

tioners) are preempted by the Safety Act, they have only

rarely found conflict preemption with respect to other types

of product liability claims involving airbag safety. For

example, in Perry v. Mercedes Benz of North America, Inc.,

957 F.2d 1257 (Sth Cir. 1992), the Fifth Circuit rejected a

defense that the Safety Act preempted a claim that an air bag

was defectively designed. The manufacturer had elected to

install an airbag in the plaintiff's car; the plaintiff alleged

that the airbag was defective because it failed to perform in

a manner that the plaintiff thought reasonable. The Fifth

Circuit held that allowing the claim to go forward would not

stand as an obstacle to the accomplishment and execution of

the full purposes and objectives of Congress, because

Congress and NHTSA (when it adopted Standard 208, the

same motor vehicle safety standard at issue in this case) did

not grant a "safe harbor" to manufacturers that would allow

them to design airbags that met but did not exceed federal

safety standards. Perry, 957 F.2d at 1265. The court

explained that allowing tort liability based on defective

airbag design “would not remove or require any particular

choice, or otherwise frustrate ‘flexibility’ that the federal

scheme provides." Id.

In contrast, Honda has convincingly demonstrated that

permitting Petitioners' claims to go forward would frustrate

federal policy by denying to manufacturers an option (not

installing airbags in all cars) expressly granted them by

ll

Standard 208. Moreover, NHTSA established that policy in

furtherance of the Safety Act's goal of maximizing

automobile safety.’ The “traditional tort regime” is in no

way undermined by preempting tort actions in those unusual

Situations where (as here) the federal government has

determined that overall public safety is enhanced if use of

unproven safety devices is phased in over a period of years.

The Leflar Brief's assertion -- that preemption of tort

claims must be narrowly confined in order to prevent the

“traditional tort regime" from being undermined -- is belied

by the history of this Court's treatment of such preemption

claims. The Court has not adopted any overarching

presumptions regarding whether state tort claims should or

should not be deemed preempted by federal laws that do not

state explicitly whether such claims are to be preempted.

Rather, the Court has adopted a case-by-case approach that

examines whether, in light of the federal statutory

framework, Congress should be deemed to have preempted

each of the plaintiff's causes of action. That case-by-case

approach is well illustrated by Cipollone, where the Court

emphasized, "We must look to each of petitioner's common-

law claims to determine whether it is, in fact, preempted."

Cipollone, 505 U.S. at 523 (plurality opinion). After

examining Congress's purposes in adopting the Public

Health Cigarette Smoking Act of 1969, the Court

determined that the 1969 Act preempted the plaintiff's

common-law claims based on failure to warn but not those

claims based on express warranty, fraudulent

* For example, federal officials determined that a policy of phasing

in airbags, rather than mandating their immediate installation, would

maximize safety by encouraging “innovation in

systems." See 49 Fed. Reg. 28962, 29001 (July 17, 1984).

12

misrepresentation, or conspiracy. Jd. at 530-31 (plurality

opinion); id. at 554 (Scalia, J., concurring in the judgment

in part and dissenting in part). Similarly, the Court in

Medtronic did not base its holding on any all-encompassing

theory regarding the propriety of preempting common-law

tort actions; rather, the Court engaged in a claim-by-claim

analysis of whether Congress had intended to preempt the

plaintiffs' negligent design, negligent manufacture, and

failure-to-warn claims. Medtronic, 518 U.S. at 492-502.

The Court has, on a number of occasions, held that

common-law tort actions are preempted by the federal

statute at issue.° Yet despite these holdings, it cannot

* See, e.g., CSX Transp., Inc. v. Easterwood, 507 U.S. 658 (1993)

(preemption of negligence claim that a conductor operated a train at an

excessive speed); Cipollone v. Liggett Group, Inc., 50S U.S. 504 (1992)

(preemption of failure-to-warn claim and certain fraudulent

misrepresentation claims pertaining to adequacy of warnings regarding

dangers of cigarette smoking); Ingersoll-Rand Co. v. McClendon, 498 U.S.

133 (1990) (preemption of employee's state law wrongful discharge claim

based upon employer's alleged attempt to avoid payment into a pension

plan); United Steelworkers of Am., AFL-~CIO-CLC v. Rawson, 495 U.S.

362 (1990) (preemption of claims that union negligently conducted mine

safety inspections in a wrongful death action); Boyle v. United Tech.

Corp. , 487 U.S. 500 (1988) (preemption of state law that held government

contractors liable for design defects in military equipment under certain

circumstances); International Brotherhood of Elec. Workers, AFL-CIO v.

Hechler, 481 U.S. 851 (1987) (preemption of state law tort claim that a

union breached its duty of care to provide a union member with a safe

workplace); Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58 (1987)

(preemption of tort claims arising from -mployer’s insurer’s termination

of disability benefits); International Paper Co. v. Ouellette, 479 U.S. 481

(1987) (implied preemption of common-law nuisance claims which could

interfere with operation of federal enviroamental program); Allis-Chalmers

Corp. v. Lueck, 471 U.S. 202 (1985) (preemption of state-law tort claim

involving bad-faith handling of an iasurance claim); San Diego Bldg.

(continued. ..)

Ce —

13

seriously be contended that the common-law tort system has

been undermined or that tort suits no longer are an effective

means of providing compensation to those wrongfully

injured. Rather, the cited cases are simply a reflection of

Congress’ decision, in a limited number of instances, to bar

tort suits that threaten to interfere ith the accomplishment

and execution of the full purposes and objectives of

Congress. Similarly, given the Leflar Brief's concession

that Congress and NHTSA's purposes and objectives

included "a phase-in strategy” for airbag installation (Leflar

Br. at 16), there can be no justification for permitting a

common-law tort suit that would conflict with that phase-in

Strategy. But given the limited nature of Honda's

preemption claim, a holding that Petitioners’ tort suit is

preempted will not undermine “the traditional tort regime."

*(...continued)

Trades Council v. Garmon, 359 U.S. 236 (1959) (preemption of damages

claim based on union picketing). Indeed, the RESTATEMENT (THIRD) OF

TORTS (1998) recognizes that federal law can preempt tort claims:

[In federal preemption, the court decides as a matter of federal law

that the relevant federal statute or regulation reflects, expressly or

impliedly , the intent of Congress to displace state law, including state

tort law, with the federal statute or regulation. . Judicial

deference to federal product safety statutes or regulations occurs . .

because, when a federal statute or regulation is preemptive, the

Constitution mandates federal supremacy.

RESTATEMENT, § 4 cmt. e (emphasis added).

14

Il. THE CONTENTION THAT PRODUCT SAFETY IS

MORE FAIRLY DEALT WITH THROUGH

COMMON-LAW ACTIONS THAN THROUGH

FEDERAL ADMINISTRATIVE ACTION IS

MERITLESS, IN ADDITION TO BEING

IRRELEVANT

The Leflar Brief cites several “prudential

considerations” in support of its contention that implied

preemption of common-law actions be given a “narrow

scope.” Leflar Br. 12. Chief among those considerations

is the authors' claim that state tort systems are less

susceptible to political corruption than are federal admini-

strative agencies. They assert:

Federal agencies such as NHTSA suffer from various

limitations in carrying out their charges, limitations

which the coexistence of the tort system can partially

susceptibility to political pressure, as the tortured

history of airbag regulation demonstrates all too well.

. . . Agencies may issue and then withdraw safety

standards depending on the political winds, but if the

tort system is in place the steady pressure of potential

liability will provide a constant background incentive

for the achievement of reasonable safety.

Leflar Br. 12-13.

There is simply no empirical evidence to support the

Leflar Brief's contention. Indeed, what evidence there is

points in precisely the opposite direction. For example,

State courts, where much products liability litigation is

brought, are themselves subject to considerable political

15

influences -- primarily because “[pJopular election and

retention of state judges have been integral components of

the American legal and political systems since the early

nineteenth century.” Scott D. Wiener, Note, Popular

Justice: State Judicial Elections and Procedural Due

Process, 31 Harv. C.R.-C.L. L. Rev. 187 (1996); see also

Robert A. Carp and Ronald Stidham, Judicial Process in

America, 263-64 (4* ed. 1998). Political pressures on state

trial and appellate judges who must run for election or re-

election include, but are not limited to, the need to raise

Wiener, supra; Carp & Stidham, supra.’

Another supposed "limitation" of federal administrative

actions is their "protracted" nature, which allegedly allows

technological progress to “race ahead of the agency's often

deliberate pace." Leflar Br. 13. But however dissatisfied

the authors of the Leflar Brief may be with the pace of

federal administrative agencies, they cannot seriously

contend that tort litigation results in safety issues being

resolved more quickly. Most state and federal trial court

’ Moreover, numerous commentators would take issue with the

Leflar Brief's contention that common-law product liability actions are

effective for achieving “reasonable safety." Leflar Br. 13. For example,

critics from all ends of the political spectrum agree that, in addressing

asbestos-related claims, the tort system has failed to achieve either

“reasonable safety” or just compensation for those injured. See Ortiz v.

Fibreboard Corp., 119 S. Ct. 2295, 2302 & n.1 (1999) (summarizing

“[t}]he most objectionable aspects” of the “elephantine mass of asbestos

cases”); Asbestos Litigation Problem, Hearing of the Subcomm. on

Administrative Oversight and the Courts of the Senate Committee on the

Judiciary, 106 Cong. (1999) (Testimony of Prof. Michael Green [one of

petag A nny ah a available at 1999 WL 27595226 (arguing

that “[ajsbestos compensation through the tort system is broken —

seriously, irreparably, and incontrovertibly”).

16

dockets are jammed, resulting in years of delay before a

product liability case can be tried.* Partially as a result of

long delays, less than 3% of state court product liability

cases ever go to jury trial, and less than 1% go to bench

trial. Brian Ostrom and Neal Kauder, Examining the Work

of State Courts, 1994: A National Perspective from the

Court Statistics Project, National Center for State Courts

(1996), at 34. Instead, the vast majority are settled or

dismissed. Id. Indeed, as this very case shows, whether the

product used by a plaintiff was defective can take years to

resolve: Ms. Geier was injured more than seven years ago,

yet her case has yet to go to trial.

The Leflar Brief also faults federal administrative

agencies for their allegedly “limited agency resources and

attention spans.” Leflar Br. at 13. The brief alleges that

agencies may fail to address “[i}nformation about newly-

discovered product risks or more effective safety designs"

because the agency has other, “more compelling” priorities.

Id. But if NHTSA has not addressed a particular safety

concern, the issue of federal preemption never arises; there

can be no conflict between state regulation and a federal

* See generally Donovan Leisure Newton & Irvine ADR Practice

Book, 605 PLI/Lit 947, 949 (1999) ("Perhaps the most descriptive words

for present day civil litigation are ‘glut’ and ‘stagnation’. . . [A] litigant

who gets a significant case to trial within three to four years is doing very

well; often it takes eight to ten years or more."); John Burritt McArthur,

The Strange Case of American Civil Procedure and the Missing Uniform

Discovery Time Limits, 24 Hofstra L. Rev. 867 (1996) (“Delay and

backlogs are regular features of American Justice.”); Brian Ostrom and

Neal Kauder, Examining the Work of State Courts, 1994: A National

Perspective from the Court Statistics Project, National Center for State

Courts (1996), at 35 (presenting statistics on the length of time from filing

to disposition of state court product liability actions).

17

product-safety policy if the federal government has not

developed a policy with respect to a specific safety concern.

Moreover, the complaint regarding “limited agency

resources” is wholly misplaced within the context of this

case: NHTSA has devoted more resources to Standard 208

than to any other motor vehicle safety standard in its

history.

Furthermore, the Leflar Brief provides no support for

its assertion that federal agencies are inferior to tort suits in

their fact-finding abilities. NHTSA, for example, has

resources (including, e¢.g., expertise, experience,

information-gathering powers, national perspective, and

funding) that dwarf those of any trial jury. NHTSA has

performed thousands of crash tests in order to investigate

air-bag safety; no jury can begin to replicate the expertise

thus acquired. Indeed, the Leflar Brief acknowledges that

federal agencies regulate product safety “more expertly"

than juries. Jd. at 18. See also Timothy Wilton,

Federalism Issues in “No Airbag” Tort Claims: Preemption

and Reciprocal Comity, 61 Notre Dame L. Rev. 30 (1986)

(“a jury inherently lacks the expertise of NHTSA in

evaluating . . . information. . . . Even the best trial cannot

present a jury with the range of information available to

NHTSA.”). .

In any event, all of these alleged "prudential consider-

ations" for limiting the scope of implied federal preemption

are largely beside the point. Congress and NHTSA adopted

a policy with respect to installation of airbags; given the

evidence that common-law tort actions undercut that policy,

the actions are impliedly preempted -- regardless whether

the Court is inclined to credit any of the prudential

arguments raised in the Leflar Brief. Moreover, there is no

18

evidence that Congress itself thought that product safety

could be dealt with more fairly through common-law

actions; indeed, it is highly unlikely that Congress would

deem the federal government institutionally incapable of

addressing such issues as fairly as state courts. The relevant

inquiry in this case is whether Congress intended to impose

limitations on the preemptive scope of its own federal

policies. In the absence of such evidence, there is no reason

to consider any of the "prudential considerations" raised in

the Leflar Brief.

Finally, the authors of the Leflar Brief assert that

common law tort actions serve many interests not served by

federal regulatory programs -- including compensation of

the injured, spreading the risk of loss throughout the entire

population, and upholding consumer expectations. Leflar

Br. 16-19. They assert that those interests are "worthy of

respect in our federal system" and thus should be subject to

federal preemption only in the rarest of circumstances. Id.

But to the extent that common-law tort actions undercut

federal policy on air-bag installation, preemption is clearly

mandated under existing case law, regardless whether the

tort actions serve interests distinct from those served by the

federal programs they undercut. The Court has stated

repeatedly that tort actions that undercut federal policy are

no less subject to preemption than "positive" actions under

State law -- such as statutes or written regulations issued by

a State agency. As the Court explained in Cipollone:

[S]tate regulation can be as effectively asserted through

an award of damages as through some other form of

preventive relief. The obligation to pay compensation

19

can be, indeed is designed to be, a potent method of

governing conduct and controlling policy.

Cipollone, 505 U.S. at 521 (plurality opinion) (citation

omitted); accord, id. at 548 (Scalia, J., concurring in the

judgment in part and dissenting in part).

A majority of the Court reaffirmed that principle in

Medtronic; as Justice Breyer explained, in parsing the

preemption language of the Medical Devices Amendments

of 1976:

One can reasonably read the word “requirement” as

including the legal requirements that grow out of the

application, in particular circumstances, of a State's tort

law. ... [O]rdinarily, insofar as the MDA pre-empts

a State requirement embodied in a state statute, rule,

regulation, or other administrative action, it would also

pre-empt a similar requirement that takes the form of a

standard of care or behavior imposed by a state-law tort

action.

Medtronic, 518 U.S. at 504-05 (Breyer, J., concurring in

part and concurring in the judgment); accord, id. at 512

(O'Connor, J., concurring in part and dissenting in part).

Petitioners argue that a judgment entered in 1999 will

not retroactively affect how automobile manufacturers

actually responded to Standard 208 in their production of

1987 model cars (such as Petitioners’ 1987 Honda Accord).

That is an unprincipled view of preemption. Tort law is

premised on a state-law duty -- here, alleged to consist of

a duty to install airbags in any 1987 vehicles. NHTSA

could not have implemented its phase-in policy, which was

20

dependent on achieving a variety of restraint designs, if state

law imposed that duty. Had they believed that such a duty

existed, manufacturers (contrary to Congress's and

NHTSA's policy goal) would have rushed to install airbags

in all new cars.” Moreover, the federal government would

have a much more difficult time obtaining compliance with

future federal policies regarding product safety if the Court

were to find against federal preemption in this case.

In sum, as the Court made clear in both Cipollone and

Medtronic, states may not avoid the preemptive effect of

federal law by regulating through their common law rather

than through statutes or administrative regulations. In either

circumstance, state regulation is impliedly preempted if it

stands as an obstacle to the accomplishment and execution

of the full purposes and objectives of Congress -- regardless

whether (as Petitioners contend) common-law tort actions

deal with product safety issues more fairly than do federal

administrative agencies and regardless whether they serve

interests not served by federal administrative regulation.

* The authors of the Leflar Brief suggest that manufacturers who

followed the federal phase-in policy did so because they had decided to

assume “the risk of later paying tort damages." Leflar Br. 7. Given the

catastrophic effect that tort damage awards can have on even the largest

corporations, it is unrealistic to think that any manufacturer would have

assumed such a risk voluntarily unless it had assured itself that adherence

to federal policy protected it from common-law tort liability.

21

IV. FEDERAL AGENCIES SHOULD NOT BE

REQUIRED TO PREDICT WHAT UNKNOWN

FUTURE TORT CLAIMS MIGHT CONFLICT

WITH THE STATUTES, REGULATIONS, AND

PROGRAMS THEY ADMINISTER

The authors of the Leflar Brief also propose that the

scope of implied conflict preemption be constricted in one

other significant way. They argue that claims under the

second prong of implied conflict preemption (preemption of

state law that stands as an obstacle to the accomplishment

and execution of the full purposes and objectives of

Congress) should be rejected “unless, at the least, the

agency has concluded after notice and opportunity to

comment that preemption is necessary to advance the

regulatory program's goals." Leflar Br. 22."° They assert

that such notice-and-comment procedures would ensure that

preemption would "be tested by public debate in the political

process, rather than imposed on the nation by the federal

judiciary." Id.

The argument is without merit. WLF notes initially that

the Leflar Brief cites no statutory authority for this notice-

and-comment requirement. Nothing in the federal Admini-

strative Procedure Act (APA), for example, requires public

notice and comment regarding the possible preemptive effect

of statutes or regulations on state tort claims. See 5 U.S.C.

§ 553. Thus, it is the authors of the Leflar Brief, not

'° They also assert that the Court should entirely abandon this second

prong of conflict preemption; they argue (without citing case authority) that

implied preemption should be limited to cases in which compliance with

both federal law and state regulation is a physical impossibility (preemption

in such cases is referred to by the Leflar Brief as “dictate preemption").

Leflar Br. 14.

22

Respondents, who are proposing that the federal judiciary

create a new procedural rulemaking requirement and impose

it on federal agencies. This Court has stated in no uncertain

terms that it is not the role of the federal courts, acting on

their own, to create rulemaking procedures utilized by

federal agencies. See Vermont Yankee Nuclear Power Corp.

v. Natural Resources Defense Council, 435 U.S. 519, 543-

45 (1978).

Furthermore, the Leflar Brief’s proposal is hopelessly

unworkable. Even assuming that a federal agency wanted

to undertake the notice-and-comment procedure that the

Leflar Brief suggests, the agency could not possibly iden-

tify, in advance, every possible type of federally conflicting

tort claim that some plaintiff in some case at some point in

the future might attempt to assert under the current (or

future) law of any of the 50 states. There is little to

recommend a procedural rule that would allow common-law

tort actions to go forward even when (as Honda has

demonstrated here) they stand as an obstacle to the

accomplishment and execution of the full purposes and

objectives of a federal safety policy, simply because an

administrative agency failed to anticipate that such actions

might be brought.

Finally, the Leflar Brief's argument overlooks a key

aspect of federal preemption: it is Congress and the

operation of the Supremacy Clause that determine the pre-

emptive scope of federal law. Once NHTSA has established

a federal motor vehicle safety standard, it is not NHTSA's

role to determine whether to permit states to enforce laws

that conflict with that standard. See Medtronic, 518 U.S. at

512 (O'Connor, J. concurring in part and dissenting in

23

part).'’ By authorizing NHTSA to issue nationwide vehicle

safety standards, Congress preempted all state laws that

conflict with any properly promulgated standards.

Accordingly, NHTSA has no authority to conduct notice-

and-comment proceedings that would purport to second-

guess the preemptive scope attached by Congress to NHTSA

standards.

'' The Safety Act plainly authorized NHTSA to establish its passive

restraint system policy by issuing Standard 208, and WLF does not

understand Petitioners to contend otherwise.

24

CONCLUSION

For the foregoing reasons and those presented in

Respondents’ brief, amicus curiae Washington Legal

Foundation respectfully requests that the decision of the

court below be affirmed.

Respectfully submitted,

LAWRENCE S. EBNER

(Counsel of Record)

MONICA A. AQUINO

MCKENNA & CUNEO, L.L.P.

1900 K Street, NW

Washington, DC 20006

(202) 496-7500

DANIEL J. POPEO

RICHARD A. SAMP

WASHINGTON LEGAL FOUNDATION

2009 Massachusetts Ave., NW

Washington, DC 20036

(202) 588-0302

(\