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

- :

FILED

|

) Ve [tale

f NOY 19

No. 98-181] OFFICE OF THE CLERK

SS, s

IN THE

Supreme Court of the United States

ALEXIS GEIER, ET AL..

Petitioners,

We

AMERICAN HONDA MOTOR Co., INC., ET AL..

Respondents.

On Writ Of Certiorari

To The United States Court Of Appeals

For The District Of Columbia Circuit

BRIEF FOR THE CHAMBER OF COMMERCE

OF THE UNITED STATES OF AMERICA AS

AMICUS CURIAE IN SUPPORT OF

RESPONDENT

Of Counsel: THEODORE B. OLSON

ROBIN S. CONRAD Counsel of Record

NATIONAL CHAMBER THEODORE J. BOUTROUS, JR.

LITIGATION CENTER, INC. THOMAS G. HUNGAR

1615H Street, N.W. GIBSON, DUNN & CRUTCHER LLP

Washington, D.C. 20062 1050 Connecticut Avenue, N.W.

(202) 463-5337 Washington, D.C. 20036

(202) 955-8500

Counsel for Amicus Curiae

QUESTION PRESENTED

Whether the National Traffic and Motor Vehicle

Safety Act of 1966, 15 U.S.C. §§ 1381 et seg. (1988),

and Federal Motor Vehicle Safety Standard 208, 49

C.F.R. § 571.208 (1987), preempt a state common-law

tort claim that an automobile manufactured in 1987 was

defectively designed because it did not contain an air-

bag.

ii

TABLE OF CONTENTS

Page

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INTEREST OF THE AMICUS CURIAE .....................00+. l

STATIS accecosincesiitstatncciebieniicieb ta tea arr l

SUMMARY OF ARGUMENT ...........cccccccsccccccsccsscssseseeees 4

ARRAS TIIIGE cediiiccncatessitinicocdeibiiesaiscicticiacinte ete ae ele 6

I. PETITIONER’S SUIT IS EXPRESSLY PRE-

EMPTED BECAUSE IT SEEKS TO IMPOSE

A “STANDARD” DIFFERENT FROM THAT

IMPOSED BY FEDERAL LAW. ............cccccccseseeseeeees 6

A. Precedent Demonstrates That State Court

Adjudication Establishes “Standards”.................. 7

B. Common Sense And Experience Confirm

That State Court Adjudication Establishes

“Standards” That Industry Must Satisfy Or

Face Potentially Crushing Liability...................0. 9

C. Petitioners’ Suit Seeks To Establish A

“Standard” That Is Different From Stan-

Il. THE DOCTRINE OF IMPLIED PREEMP-

TION BARS PETITIONERS’ SUIT ..........ccccceseesees 14

A et

il

A. This Court’s Precedents Make Clear That

Implied Preemption Analysis Is Appropri-

ate Under Statutes Containing An Express

Preemption Provision ..............:..0c.sscssscseseseeeeesees

B. The Evisceration Of Implied Preemption

Analysis Sought By Petitioners And Their

Amici Would Work A Dramatic And Dis-

astrous Shift In The Balance Of State And

ST ilitiesidbh deinenthdicdainsinstisnasedenrseincsencsenssseenssenee

iv

TABLE OF AUTHORITIES

CASES

American Airlines, Inc. v. Wolens,

FED Un SEP CSOD ccnvtivrstcneemnatinnes ease -ctnisiipmndaiaie

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

Tel., Inc., 524 U.S. 214 (1998) .cs.ccccssccccsesessueseeee

Brown v. Hotel & Rest. Empls. & Bartenders

Int'l Union Local 54, 468 U.S. 491

CU i Re

Browning-Ferris Indus. of Vt., Inc. v. Kelco

Disposal, Inc., 492 U.S. 257 (1989) secc.cccccccsssesessues

CSX Transp., Inc. v. Easterwood,

SOF Wah GE CORSO cheentvctantntninnciesrnmeens

Camacho v. Honda Motor Co., 741 P.2d

RC A CITI ite tihenpicinbacheitninctittintgectaieasstnenaiin

Cipollone v. Liggett Group, Inc.,

SOD ULE. FOO CED cenvinetneniirnennentemtmiseereninnss

Cox v. R.O. Corp., 470 So. 2d 790 (Fla. Dist.

he iin I i

Dallas v. F.M. Oxford Inc., 552 A.2d 1109

We ate Ci I saci sect heer

Davis v. Commercial Union Ins. Co.,

S92 F 26 S7B (SEs Cit. BDBG) wcccoscccevccceceecescscersceseeee

Doty v. Navistar Int'l Transp. Corp., 639

N.Y.S.2d 592 (N.Y. App. Div. 1996) ..cccccccsssssssseee

_.

mee SC

Vv

Duncan v. Cessna Aircraft Co., 632 S.W.2d

375 (Tex. App. 1982), rev'd in part on

other grounds by Duncan v. Cessna Air-

craft Co., 665 S.W.2d 414 (Tex. 1984)

and Smithson v. Cessna Aircraft Co., 665

Ae 8 EE eee 9

Dura-Stilts Co. v. Zachry, 697 S.W.2d 658

(Tex. App. 1985, writ ref’d 1.1.€.) .....c.ccccececeeeeees 10

Felder v. Casey, 487 U.S. 131 (1988) ........ccccccccceeeseees 26

Free v. Bland, 369 U.S. 663 (1962) .......cccccccsseeeeeereeens 26

Freightliner Corp. v. Myrick,

I Ree 14,15,18

Geier v. American Honda Motor Co.,

166 F.3d 1236 (D.C. Cir. 1999) .........cccceeees 2-3,14,15

Grover v. Grover, 972 S.W.2d 568

GR DR, Baa FE cenpcscssectercsterecicenpessetcommsencaseese 11

Hancock v. Paccar, Inc., 283 N.W.2d 25

ECE Ca 10

Hopper v. Crown, 646 So. 2d 933 (La. Ct.

Billy: TI cecharinbiinnstncinadentichamesittintetcteranamnanssieee 10

Hughes v. Oklahoma, 441 U.S. 322 (1977) .....ccccseese0 19

Ingersoll-Rand Co. v. McClendon,

i) Sf a 1,16

International Paper Co. v. Ouellette,

| OE __, aS eee 16

Joe Sartain Ford, Inc. v. American Indem.

Co., 399 So. 2d 281 (Ala. 1981), over-

ruled in part on other grounds by Lloyd

vi

Wood Coal Co. v. Clark Equip. Co., 543

So. 2d 671 (Alla. 1989) ..........c.ccccccererereesese

John Hancock Mutual Life Insurance Co. v.

Harris Trust & Savings Bank,

eS Fe

Jones v. Rath Packing Co., 430 U.S. 519

CRD ED ccmescemacretsinsarremnenstinseienteemmageines

Medtronic, Inc. v. Lohr,

FOS UD Se GRIGG cecenccisnnncnicsiinmmans

Miller v. Varity Corp., 922 S.W.2d 821 (Mo.

Ch, RA, GID ectetetersvcticennninitinsinlttones

Morales v. American Honda Motor Co., 151

F.3d 500 (6th Cir. 1998) ........cccccseeeereeeees

Morgen Indus., Inc. v. Vaughan, 471 S.E.2d

GED CUE. BODE enecsstensintshitnitinsinicnastcmes

Motor Vehicle Mfrs. Ass'n of the U.S., Inc. v.

State Farm Mut. Auto. Ins. Co.,

SED Ul . Be Ge cntciieritrcrensticmnserencsnenes

New State Ice Co. v. Liebmann,

BOS UT. Bee CEDURE cetcesestnestntncssireerncecemneces

Nicolodi v. Harley-Davidson Motor Co.,

370 So. 2d 68 (Fla. Dist. Ct. App. 1979) ...

Norfolk & Western Ry. Co. v. American

Train Dispatchers’ Ass'n, 499 U.S. 117

CN i

Parklane Hosiery Co. v. Shore,

Ee

vii

Piper Aircraft Co. v. Reyno,

et Lt |

Rice v. Santa Fe Elevator Corp.,

FEE Ce SUED ERIE D cccennectncsinsectcccsesenenisines

San Diego Building Trades Council v. Gar-

MON, 359 U.S. 236 (1959) .....ccecceeeserereees

Selmo v. Baratono, 184 N.W.2d 367 (Mich.

RS Ee cee

Simpson v. General Motors Corp.,

483 N.E.2d 1 (Ill. 1985) ..........scceceessereees

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

Co., 204 U.S. 426 (1907) ......cccscesersereeees

United States v. Locke, Nos. 98-1701 and

Watson v. Navistar Int'l Transp. Corp.,

827 P.2d 656 (Idaho 1992) ...........s00000

Widson v. International Harvester Co.,

200 Cal. Rptr. 136 (Cal. Ct. App. 1984)

Wisconsin Dep't of Industry, Labor & Hu-

man Relations v. Gould Inc.,

SFIS UB. Fae CEPR) cxcccecssssesevesscocesescceces

CONSTITUTION

U.S. CONST. art. I, § 8, Cl. 3....ccccccercereenenees

ee ee

prepennvenetenes 18

Vill

STATUTES AND LEGISLATIVE MATERIALS

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BS TTB © GBI ccnccctcssccreasisinnisiinttsnimnilectenssesttiniasietnaes 6

BS UGC. © SEDI EAD cccccsccvssasiicitnsinsinesonsiviisuapiitipabiaibdininnse 6

BS ERC. © ROTI ccccnsceteintntactensiisiasticnitsteesionmaduiacte 2,4,7

RS TEBE. 6 CIPD cnsevcsnsnceccieccsbeastaiccietpegninaieviontene 3,16

BE Bis eI ectenccosckesicetiinbichinintnctenentevinianngiieeictapibe 7

GIGI A, © SVB IOW coticetsreccsssttinnsstennithinstiveseinigticinninn 2

GD CIR. © STUDER BAB secrcccccccvesstsorscsnvessncessesseses 2

49 Fed. Reg. 28,962 (1984) ............ccssscsssrsrsssrsseeeseresenes 2

Pub. L. No. 103-272, 108 Stat. 745 ........cccccccssesereresensees 1

MISCELLANEOUS

3 RECORDS OF THE FEDERAL CONVENTION

Chars Fae 06... TBTE) sccascsscscsvessennmansssrceeevsesenees 19

47 AM. JUR. 2D Judgments § 647 (1995) .........cccceeseee 12

Marc M. Arkin, Products Liability and the

Threat to Contraception, Manhattan In-

stitute Civil Justice Memo No. 36 (Feb.

1999) <http://www.manhattan-

institute.org/html/cjm_36.HtM> ............c0cceeeeeeereees 22

David E. Bernstein, The Breast Implant Fi-

asco, 87 CAL. L. REV. 457 (1999) .....cccccersceeseensenes 22

THE FEDERALIST No. 7 (Alexander Hamil-

tom) (amtaa O06. 196Z) ....<cosccoressrnnscversccssecescesccsssees 19

ix

THE FEDERALIST NO. 11 (Alexander Hamil-

ton) (Bantam ed. 1982) ..........ccccccesssseeseeseseeeees

Wayne C. Koff, The next steps toward a

global AIDS vaccine, SCIENCE, Nov. 25,

Fe inhebesacehindiociadiptasilapinabantienentbnesecinnseisovonsees

Michael W. McConnell, A Choice-of-Law

Approach to Products-Liability Reform,

in NEW DIRECTIONS IN LIABILITY LAW

90 (Walter Olson ed., 1988) ....c.cccccccssssssssseseen

Linda S. Mullenix, Resolving Aggregate

Mass Tort Litigation: The New Private

Law Dispute Resolution Paradigm,

33 VAL. U. L. REV. 413 (1999) .......ccccccceeeeeees

Richard Neely, THE PRODUCT LIABILITY

ECE UED . cvinksnevcoctniinbenseesisdduntasnetnnceesecessssoes

Gita F. Rothschild, Forum Shopping, 24

LITIGATION 40 (Spr. 1998) .....csscevecsssssssesssveeees

E.H. Schopler, Annotation, Comment Note:

Mutuality of Estoppel As Prerequisite of

Availability of Doctrine of Collateral

Estoppel to a Stranger to the Judgment,

31 A.L.R.3D 1044 (Supp. 1999) ...ccccccccsecseseee

INTEREST OF THE AMICUS CURIAE!

The Chamber of Commerce of the United States of

America (“the Chamber”) is the world’s largest business

federation. The Chamber ts an een pot

membership of nearly three million businesses

oh ma ede ee

sector region 0 country

Chamber has filed numerous amicus briefs in this Court

on the subject of federal ion. See, e.g., United

States v. Locke, Nos. 98-1701 and 98-1706 couee brief

filed Oct. 22, 1999): American Airlines, Inc. v. Wolens,

513 U.S. 219 (1995); Ingersoll-Rand Co. v. McClendon,

498 U.S. 133 (1990); Wisconsin Dep't of Industry, La-

bor & Human Relations v. Gould Inc., 475 U.S. 282

(1986).

STATEMENT

1. The National Traffic and Motor Vehicle Safety

Act of 1966, as amended, 15 U.S.C. §§ 1381 et seg.

(1988) (the “Act”),2 requires the Secretary of Transpor-

tation to ulgate federal motor vehicle safety stan-

dards. e Act includes a preemption provision that

precludes states from establishing or continuing in effect

! Pursuant to this Court’s Rule 37.6, amicus states that no

counsel for any party authored this brief in whole or in part,

and no person or entity other than amicus, its members, or its

counsel made a monetary contribution to the preparation or

submission of the brief. Counsel of record for both petitioners

and respondents have consented to the filing of this amicus

brief in letters that have Leen lodged with the clerk.

2 The Act was amended and recodified without substantive

change in 1994. Pub. L. No. 103-272, 108 Stat. 745. The court

below and the parties have continued to refer to the earlier ver-

sion of the Act, so for sake of clarity amicus will adhere to that

same practice.

2

“any safety standard” that is not “identical to” an exist-

ing federal motor vehicle safety standard applicable to

the same aspect of motor vehicle performance. 15

U.S.C. § 1392(d).

Pursuant to the Act, the Secretary has set forth uni-

form federal standards for motor vehicle occupant crash

protection in Federal Motor Vehicle Safety Standard

208. See 49 C.F.R. § 571.208. The version of Standard

208 at issue in this case was promulgated by the Secre-

tary in 1984. During the time period relevant to this

case, Standard 208 authorized motor vehicle manufac-

turers to achieve the requisite level of motor vehicle

safety without providing airbags in every motor vehicle.

49 C.F.R. § 571.208.84.1.3.1. Instead, Standard 208 di-

rected manufacturers to install a passive restraint system

of some type in 10 percent of cars manufactured in the

relevant model year, and gave manufacturers the right to

select a variety of passive restraint systems—including

but not limited to airbags—in order to satisfy this re-

quirement. Jd. The Secretary expressly refused to re-

quire manufacturers to include airbags in all cars, noting

a number of safety, economic, technological, and practi-

cal goals that would be frustrated by imposition of such

a requirement at that time. 49 Fed. Reg. 28,962, 29,000-

02 (1984).

2. Alexis Geier was injured when she lost control of

the 1987 Honda Accord she was driving and crashed

into a tree. She and her parents, petitioners herein,

brought suit against respondents claiming that the Honda

Accord was defective because it did not contain an air-

bag.

The United States District Court for the District of

Columbia granted respondents’ motion for summary

judgment and dismissed petitioners’ complaint. The

court ruled that petitioners’ theory of liability was ex-

pressly preempted by the Act’s preemption provision, 15

U.S.C. § 1392(d), and by Standard 208. See Geier v.

ee ee ete ee Ome mm

3

American Honda Motor Co., 166 F.3d 1236, 1238 (D.C.

Cir. 1999). om

The United States Court of for the District

4 Dy eee oft | affirmed. court noted that

“[t}he lan of § 1392(d) is fairly sweeping” and that

“fo]n its a. .. the term ‘standard’ in § 1392(d) could

apply to the requirements imposed by common law tort

verdicts.” 166 F.3d at 1240. The court declined to de-

cide whether petitioners’ claim was expressly pre-

empted, however, noting that the Act contains a so-

called “savings clause” providing that “[c]ompliance

with any Federal motor vehicle safety standard issued

under this subchapter does not exempt any person from

any liability under common law.” 15 U.S.C. § 1397(k);

see 166 F.3d at 1241.

Instead, the court of appeals joined several of its sis-

ter circuits in concluding that petitioners’ cause of action

was impliedly because “a verdict in her favor

would stand as an le to the federal government's

chosen method of achieving the Act’s safety objectives.”

Id. As the court explained, “[a] successful no-airbag

claim would mean that an automobile without an airbag

was defectively designed. Congress, however, delegated

authority to prescribe specific motor vehicle safety stan-

dards to the Secretary of Transportation, who in turn

explicitly rejected requiring airbags in all cars on the

ground that a more flexible approach would better serve

public safety.” Jd. at 1242 (citation omitted). Thus, the

court concluded, “allowing design defect claims based

on the absence of an airbag for the model-year car at is-

sue would frustrate the Department’s policy of encourag-

ing both public acceptance of the airbag technology and

experimentation with better passive restraint systems.”

Id. at 1243. Accordingly, petitioners’ claim was im-

plicitly preempted. /d.

4

SUMMARY OF ARGUMENT

I. The Act preempts “any” state-imposed “safety

standard” that is not “identical to” an existing federal

motor vehicle safety standard relating to the same aspect

of motor vehicle performance. 15 U.S.C. § 1392(d).

Petitioners err in contending that this provision is inap-

plicable to standards imposed through common-law ad-

judication.

In the first place, this Court has repeatedly recog-

nized that state common-law suits impose legal rules and

standards that have the same regulatory effect as legisla-

tive or administrative pronouncements. Thus, this Court

has concluded that common-law suits fall within the

scope of SS provisions that refer to “require-

ments,” “laws,” “standards,” and the like. The same

conclusion is equally appropriate here.

In addition, common sense and experience confirm

that state-law tort suits result in the imposition of safety

standards on industry. Applying modern tort-law doc-

trines, state courts and juries have repeatedly imposed li-

ability for products’ failures to meet ific safety-

related criteria. As even a limited sampling of the case

law demonstrates, there are countless cases in which

state courts have imposed or authorized findings of li-

ability based on a product’s inability to satisfy particular

performance standards or design criteria imposed by the

common law. The simple truth is that state courts and

juries are adopting and enforcing an ever-widening array

of ormance and design standards through the

mechanism of common-law adjudication, and thus it is

readily apparent that state-law tort suits like this one lead

to the establishment of “safety standard[s].” Petitioners’

suit plainly seeks to establish a “safety standard” that is

not identical to the standard set forth in Standard 208,

and it is therefore expressly preempted by § 1392(d).

II. Petitioners’ suit is also impliedly preempted be-

cause, as the court of appeals correctly held, permitting

5

tort plaintiffs to subject manufacturers to liability for

failing to install airbags would frustrate the regulatory

goals that the Secretary of T ion sought to

achieve in promulgating Standard 208. Petitioners con-

tend that implied aa pata analysis is unavailable in

this case because the Act contains an express preemption

provision and a so-called “savings clause,” but petition-

ers’ argument is without merit, for two reasons.

First, this Court’s precedents make clear that implied

conflict preemption analysis is entirely iate in

these circumstances. Petitioners rely on Cipollone v.

Liggett Group, Inc., 505 U.S. 504 (1992), but that case

announces no prohibition against resort to implied pre-

emption analysis under statutes containing express pre-

emption clauses, and numerous ts of this Court

preclude adoption of any such rule. Equally flawed is

petitioners’ reliance on § 1397(k), the so-called “savings

clause.” This Court has consistently held that even the

existence of a true savings clause does not obviate the

need for implied conflict preemption analysis, because

such clauses “‘cannot in reason be construed as continu-

ing ... a common law right, the continued existence of

which would be absolutely inconsistent with the provi-

sions of the act.’” American Tel. & Tel. Co. v. Central

Office Tel., Inc., 524 U.S. 214, 227-28 (1998) (quoting

Texas & Pac. Ry. Co. v. Abilene Cotton Oil Co., 204

U.S. 426, 446 (1907)).

Second, persuasive considerations of public policy

compel rejection of the arguments advanced by petition-

ers and their amici, which would largely eviscerate the

doctrine of implied preemption as it has been recognized

and applied by this Court. Petitioners and their amici of-

fer no justification for so dramatic a departure from the

current understanding of federal-state relations. If any-

thing, recent trends in state tort law demonstrate an en-

hanced need for vigorous enforcement of implied pre-

emption principles in order to shield our national econ-

omy from the increasing burdens placed upon it by un-

6

constrained, arbitrary, inconsistent, and excessive tort

verdicts and liability rules. The same considerations that

impelled the Framers of our Constitution to grant Con-

gress ane eo to regulate interstate commerce and pre-

empt burdensome state economic regulations now com-

pel redoubled vigilance in judicial enforcement of im-

plied preemption doctrine, which is necessary to ensure

that the states do not impose undue burdens on interstate

commerce through their common-law tort systems, par-

ticularly in instances where, as here, Congress or the re-

sponsible federal agency has already spoken by adopting

a uniform national standard.

ARGUMENT

I. PETITIONER’S SUIT IS EXPRESSLY PRE-

EMPTED BECAUSE IT SEEKS TO IMPOSE

A “STANDARD” DIFFERENT FROM THAT

IMPOSED BY FEDERAL LAW

The National Traffic and Motor Vehicle Safety Act

of 1966 requires the Secretary of Transportation to es-

tablish “appropriate Federal motor vehicle safety stan-

dards” for “motor vehicle performance ... which [are]

practicable, which mr the need for motor vehicle

safety and which provide[] objective criteria.” 15 U.S.C.

§§ 1391(2), 1392(a). The Act expressly mandates fed-

eral preemption of any state-law “safety standard” that is

not identical to an existing Federal standard applicable to

the same aspect of performance:

Whenever a Federal motor vehicle safety stan-

dard established under this subchapter is in ef-

fect, 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 equip-

ment which is not identical to the Federal stan-

dard. Nothing in this section shall be construed

7

as preventing State from enforcing an

safety standard which is identical to 2s Sebo

safety standard.

15 U.S.C. § 1392(d).

Petitioner contends (Pet. Br. 18-25) that this express

provision does not apply to common law

A. Precedent Demonstrates That State Court Ad-

judication Establishes “Standards”

This Court has repeatedly recognized that state

common-law suits are appropriately subjected to the

same preemption analysis as state statutes or administra-

tive regulations under express preemption provisions

analogous to § 1392(d), because common-law adjudica-

tion results in the imposition of legal rules and standards

that have the same regulatory i t as legislative or

administrative pronouncements. In Medtronic, Inc. v.

Lohr, 518 U.S. 470 (1996), for example, five Justices of

this Court concluded that common-law suits are subject

Ss eee © een, Saale pusemape.

“any requirement ” imposed by a “State or political

subdivision that is “different from, or in addition to,”

any requirement imposed by the federal regulator

por Bn 21 U.S.C. § 360k(a); see 518 U.S. at $04 (“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.”)

(Breyer, J., concurring in part and concurring in the

judgment); id. at 509 (“state common-law damages ac-

tions do impose ‘requirements’ and are therefore pre-

empted where such requirements would differ from

those imposed by the [federal regulatory scheme]”)

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

Similarly, in Cipollone v. Liggett Group, Inc., 505

U.S. 504 (1992), six Justices concluded that a statute

preempting certain “requirement[s] or prohibition(s} . . .

imposed under State law” was fully applicable to com-

mon-law actions. Jd. at 520-23 (opinion of Stevens, J.);

id. at 548-49 (Scalia, J., concurring in the judgment in

part and dissenting in part). The plurality explained that

“(t]he phrase ‘[n]o requirement or prohibition’ sweeps

broadly and suggests no distinction between e en-

actments and common law; to the contrary, words

easily encompass obligations that take the form of com-

mon-law rules.” Jd. at 521 (opinion of Stevens, J.). In-

dood, 22 the plavaliay noted, “"Ietetel ion can be as

effectively exerted through an a of damages as

through some form of preventive relief. The obligation

to pay compensation can be, and indeed is designed to

be, a potent method of governing conduct and control-

ling policy.” Jd. (quoting San Diego Building Trades

Council v. Garmon, 359 U.S. 236, 247 (1959)). Accord,

e.g., CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664

(1993) (“Legal duties — ... by the common law

fall within the scope of” statute preempting any state

“law, rule, regulation, order, or standard relating to rail-

road safety”) (emphasis added); Norfolk & Western Ry.

Co. v. American Train Dispatchers’ Ass'n, 499 U.S. 117,

128 (1991) (statutory provision preempting “‘the anti-

trust laws and all other law, including State and munici-

pal law,”” did “not admit of [any] distinction ... be-

tween positive enactments and common-law rules of li-

ability”).

These cases confirm that § 1392(d) must be con-

strued in accordance with its plain language to encom-

pass safety standards imposed by state tort law. Like the

terms “requirement,” “prohibition,” “law,” and “stan-

dard” at issue in the foregoing cases, the phrase “any

safety standard” as used in § 1392(d) is broad and all-

__ State courts and juries frequently impose strict liabil-

ity on the basis of particular porfitenanse standards ior

posed retroactively by operation of the common law.

For example, the Texas courts upheld a jury verdict

finding an aircraft manufacturer liable for the deaths of

two individuals caused when their seats broke loose

during a or crash. See Duncan v. Cessna Aircraft

Co., 632 S.W.2d 375 (Tex. App. 1982), rev'd in on

other grounds by Duncan v. Cessna Aircraft Co. 665

S.W.2d 414 (Tex. 1984), and Smithson v. Cessna Air-

craft Co., 665 S.W.2d 439 (Tex. 1984). This holding

was premised on a determination that the seat legs

should have been designed to withstand 25 G’s, but were

only one-fifth that strong. 632 S.W.2d at 382-83.

Equally specific performance standards have been im-

10

peep io ene Ge a

w.

Similarly, state courts frequently impose liability on

manufacturers for failure to satisfy fic design crite-

ria purportedly necessary to achieve the requisite level of

safety demanded by state tort law. In Dallas v. F.M.

Oxford Inc., 552 A.2d 1109 (Pa. . Ct. 1989), for

example, a Pennsylvania state court upheld a

jury verdict imposing liability on an elevator manufac-

turer for injuries caused by an elevator door. The liabil-

ity determination rested on the proposition that elevator

doors must have lectric cells, rather than simply

rubber “safety ” to make them retract when an

object comes between the doors. /d. at 1110, 1113.

Similarly, in Hopper v. Crown, 646 So. 2d 933 (La. Ct.

App. 1994), a Louisiana state appellate court upheld a

jury verdict against a forklift manufacturer. The com-

pany’s forklift design was declared defective because the

partially enclosed driver’s compartment had no door in

the back to keep a standing driver from being ejected

during a collision. /d. at 946. Numerous other courts

have imposed or upheld equally specific safety-related

3 See, e.g., Joe Sartain Ford, Inc. v. American Indem. Co.,

399 So. 2d 281 (Ala. 1981) (a truck’s oil line should be made

of metal rather than neoprene), overruled in part on other

grounds by Lloyd Wood Coal Co. v. Clark Equip. Co., 543 So.

2d 671 (Ala. 1989); Selmo v. Baratono, 184 N.W.2d 367

(Mich. Ct. App. 1970) (a car’s bumper brackets should be suit-

able for use in towing the car); Hancock v. Paccar, Inc., 283

N.W.2d 25 (Neb. 1979) (a truck’s bumper should be strong

enough not to bend back and obstruct a wheel upon severe im-

pact); Dura-Stilts Co. v. Zachry, 697 S.W.2d 658 (Tex. App.

1985, writ ref’d n.r.e.) (the aluminum alloy used to make stilts

should be strong enough to support a foreseeable weight).

1]

design, requirements in a wide array of product liability

The simple truth is that state court judges and juries

have been adopting and enforcing . EB

ray of performance and desi standards i ‘.

4 See, e.g., Widson v. International Harvester Co.. 200

, . be Cal.

Rptr. 136 (Ct. App. 1984) (an earth mover should have an

audible device to warn that it is backing-up); Camacho vy.

Honda Motor Co., 741 P.2d 1240 (Colo. 1987) (en banc) (a

motorcycle should have leg-protection devices); Nicolodi v.

Harley-Davidson Motor Co., 370 So. 2d 68 (Fla. Dist. Ct. App.

1979) (same); Cox v. R.O. Corp., 470 So. 2d 790 (Fla. Dist. Ct.

App. 1985) (a truckbed-mounted crane should have an audible

device to warn that its Outriggers are about to deploy); Watson

v. Navistar Int'l Transp. Corp., 827 P.2d 656, 675-76 (Idaho

1992) (a four-inch gap in a combine’s auger cover should be

made smaller or guarded); Simpson v. General Motors Corp..,

483 N.E.2d 1 (Ill. 1985) (an earth scraper should have a roll

bar); Morales v. American Honda Motor Co., 151 F.3d 500

507 (6th Cir. 1998) (a children’s motorcycle should have 2

safety flag) (applying Kansas law); Davis v. Commercial Union

Ins. Co., 892 F.2d 378 (Sth Cir. 1990) (a lint-cleaning machine

should have interlock device to shut off its rollers when guard

is removed) (applying Louisiana law); Grover v. Grover, 972

S.W.2d 568 (Mo. Ct. App. 1998) (automobile ramps should

have barners to prevent a vehicle from easily rolling off);

Miller v. Varity Corp., 922 S.W.2d 821 (Mo. Ct. App. 1996) (a

tractor should have a rollover protection system); Doty v. Na-

vistar Int'l Transp. Corp., 639 N.Y.S.2d 592 (N.Y. App. Div.

1996) (a combine auger should be covered by a guard or have

tapered edges and non-protruding screws); Morgen Indus., Inc.

v. Vaughan, 471 S.E.2d 489, 492 (Va. 1996) (a conveyor belt

should have wheel guards at the nip points).

12

Petitioners’ amici protest that a single tort plaintiff's

success in court does not translate into a standard be-

cause “it does not relieve any subsequent plaintiff of the

burden of proving each element of their causes of ac-

tion.” Br. Amicus Curiae of Ass’n of Trial Lawyers of

America at 7. But that argument simply ignores reality.

In the first place, principles of stare decisis and respect

for precedent ly mean that one appellate court’s

decision upholding liability based on a icular pur-

ported defect or flaw potentially will be followed in fu-

ture cases. Moreover, one success—or even potential

success—by plaintiffs’ lawyers inevitably spawns a host

of copycat suits seeking to cash in on the same winning

theme, forcing industry to respond to an onslaught of

litigation at great cost. See Linda S. Mullenix, Resolving

Aggregate Mass Tort Litigation: The New Private Law

Dispute Resolution Paradigm, 33 VAL. U. L. REV. 413,

442 (1999).

The argument that one plaintiff's success does not

translate into a “standard” is further refuted by the fact

that, in the wake of this Court’s adoption of the doctrine

of non-mutual offensive collateral estoppel (see

Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979)),

nearly 30 states, including the District of Columbia, have

adopted some version of that doctrine. See 47 AM. JUR.

2D Judgments § 647 (1995); see also E.H. wom An-

notation, Comment Note: Mutuality of Estoppel As Pre-

requisite of Availability of Doctrine of Collateral Estop-

pel to a Stranger to the Judgment, 31 A.L.R.3D 1044 §§

4(c) and 5 (Supp. 1999). As a consequence, individual

state tort suits may create the potential for the establish-

ment of de facto regulatory standards that in some cir-

cumstances may be binding on the defendant in future

cases as well. Moreover, once a single court or jury has

deemed a product defective for failing to satisfy a par-

ticular design or performance requirement, future plain-

tiffs will typically rely on that finding as a basis for

seeking punitive damages from the manufacturer, on the

theory that the prior jury award placed the manufacturer

13

on “notice” of the “defect.” Thus, defendants faced with

new court-imposed standards may have little choice but

bude cy alt reo’ Standards in order to minimize the

- ‘tigati a

cay - further litigation, punitive damages, and

C. Petitioners’ Suit Seeks To Establish A

aoe card” That Is Different From Standard

For all these reasons, therefore, there is no merit

petitioners’ argument that their lawsuit does not seek °

impose “any safety standard” within the meaning of

§ 1392(d). By means of this state-law tort suit, petition-

ers plainly seek to obtain a judicially binding determina-

tion that ey | were obligated to incorporate an

airbag into the 1987 Honda Accord. That desired de-

termination 1s every bit as much a “safety standard” as

would be the identical requirement imposed by a state

legislature or regulatory agency, and nothing in

§ 1392(d) differentiates betw

LF noe » , een these different sources

Consequently, petitioners’ attempt to avoid

preemption reduces to their mete that the spade’

savings clause” set forth in § 1397(k) requires rejection

. prod ssn = : — ag in order to immunize

mon-law liability rules from express preemption.

As Justice Breyer cogently observed when coulionaed

with a similar argument in Medtronic, however, “[t]o

distinguish between [state agency regulation and state

tort-law regulation] for preemption purposes would grant

greater power . . . to a single state jury than to state offi-

cials acting through state administrative or legislative

lawmaking processes.” 518 U.S. at 504 (Breyer, J., con-

curring in part and concurring in the judgment). In the

absence of compelling evidence that Congress expressly

considered and intended to achieve such an improbable

result, there is no justification for construing the Act in

this fashion. See id. (“Where Congress likely did not fo-

14

cus specifically upon the matter, ... I would not take it

to have intended this anomalous result.”’).

As has been ably demonstrated by respondents,

§ 1397(k) plainly was not intended to achieve the

“anomalous result” urged by petitioners. Instead,

§ 1397(k) (which does not even the issue of pre-

emption) was intended to ensure that a motor vehicle

manufacturer's compliance witi. federal requirements

would not automatically be deemed to establish the af-

firmative defense of compliance with applicable safety

regulations. Thus, contrary to the ents advanced

by petitioners and their amici, § 1397(k) does not trump

the plain language of § 1392(d), and petitioners’ cause of

action is expressly preempted.

ll. THE DOCTRINE OF IMPLIED PREEMP-

TION BARS PETITIONERS’ SUIT

Under this Court’s precedents, implied conflict pre-

emption will be found “where it is ‘impossible for a pri-

vate party to comply with both state and federal re-

uirements,’ or where state law ‘stands as an obstacle to

e accomplishment and execution of the full purposes

and objectives of Congress.” Freightliner Corp. v.

Myrick, 514 U.S. 280, 287 (1995) (citations omitted).

As the court below correctly recognized, petitioners’ at-

tempt to subject respondent to liability for failing to in-

stall airbags in its 1987 Honda Accords would te

the regulatory goals sought to be achieved by the Secre-

tary of Transportation in promulgating Standard 208

pursuant to the authority delegated by Congress. See

166 F.3d at 1242-43. Accordingly, petitioners’ suit is

impliedly preempted.

Petitioners contend, however, that the court of ap-

peals “should never have resorted to implied preemption

analysis here,” because such analysis is allegedly inap-

propriate when Congress has adverted to the issue of

ion in the statute. Pet. Br. 34-41. As demon-

strated below, this Court’s precedents compel rejection

ee |

wer ee ree -

15

of petitioners’ contention. Moreover, powerful consid-

erations of public policy confirm the need for implied

preemption analysis when, as here, Congress or a federal

agency has to adopt a uniform federal standard.

A. This Court’s Precedents Make Clear That

Implied Preemption Analysis Is Appropriate

Under Statutes Containing An Express Pre-

emption Provision

In support of their assertion that implied preemption

analysis is ina jate here, petitioners rely primarily

on Cipollone. n that case, the Court noted that there is

no need to infer preemptive intent from a statute’s sub-

stantive provisions when the statute also contains an ex-

press preemption provision that “provides a ‘reliable in-

dicium of con ional intent with respect to state

authority.”” 505 U.S. at 517. That observation is ina

posite here, however, and provides no justification for

petitioners’ attempt to rewrite preemption law to evis-

cerate the doctrine of implied conflict preemption.

Contrary to petitioners’ apparent belief, Cipollone

did not purport to lude implied preemption in in-

stances where the relevant federal — oe an “9

press preemption clause. Indeed, as the court of appeals

recognized (166 F.3d at 1241-42), that reading of

Cipollone was ly rejected in Freightliner Corp. v.

Myrick, 514 U.S. 280 (1995), which held that the argu-

ment that implied ption analysis is unavailable “is

without merit.” /d. at 287. In fact, as the Court in

Freightliner pointed out (id. at 288-89), Cipollone itself

conducted implied preemption analysis despite the pres-

ence of an ex mptive provision (505 U.S. at

518), so Cipollone ston cannot support the weight

that petitioners place on it. In short, Cipollone does not

“obviate the need for analysis of an some semper ae

pre-emptive effects,” including consideration of impli

ion. Freightliner, 514 U.S. at 289 (citing CSXY

ransp., Inc. v. Easterwood, 507 U.S. 658, 673 n.12

(1993).

16

Numerous other cases are to the same effect. In

Ingersoll-Rand Co. v. McClendon, 498 U.S. 133 (1990),

for example, the Court first considered the express pre-

emption provision contained in the Employee Retire-

ment Income Security Act of 1974 (id. at 138-42), and

then went on to conduct an implied conflict ption

analysis as well (id. at 142-45), concluding that “the re-

quirements of conflict pre-emption are satisfied in this

case.” Jd. at 145. Accord, e.g., Jones v. Rath Packing

Co., 430 U.S. 519, 540-41, 543 (1977) (Court’s determi-

nation that state law was not expressly preempted “does

not ... resolve this case, for we still must determine

whether the state law ‘stands as an obstacle to the ac-

complishment and execution of the full purposes and

objectives of Congress’”) (citation omitted); see also

Medtronic, 518 U.S. at 503 (“the issue [of express pre-

emption] may not need to be resolved if the claim would

also be pre-empted under conflict pre-emption analysis”)

(opinion of Stevens, J.); CSX Transp., 507 U.S. at 673

n.12.

Equally flawed is petitioners’ suggestion that the

Act’s so-called “savings clause” (§ 1397(k)) somehow

displaces traditional je ary doctrine and precludes

resort to principles of implied conflict preemption. This

Court has tedly applied conflict preemption analy-

sis despite the presence of even a true savings clause,

reasoning that such clauses “‘cannot in reason be con-

strued as continuing . . . a common law right, the contin-

ued existence of which would be absolutely inconsistent

with the provisions of the act. In other words, the act

cannot be held to destroy itself.’” American Tel. & Tel.

Co. v. Central ce Tel., Inc., 524 U.S. 214, 227-28

(1998) (quoting Texas & Pac. Ry. Co. v. Abilene Cotton

Oil Co., 204 U.S. 426, 446 (1907)); see, e.g., Interna-

tional Paper Co. v. Ouellette, 479 U.S. 481, 493-94

(1987).

Indeed, this Court has already held that implied pre-

emption analysis is appropriate in circumstances essen-

17

tially identical to those that, in petitioners’ view, are pre-

sent here. In John Hancock Mutual Life Insurance Co.

v. Harris Trust & Savings Bank, 510 U.S. 86 (1993), the

relevant federal statute contained an express preemption

provision, but also contained a savings clause that the

Court found was directly applicable to the state law at is-

sue. Jd. at 99. Despite existence of this facially

applicable savings clause, the Court had no difficulty

concluding that implied preemption analysis was

jate; the savings clause provided “no solid basis for

lieving that Congress ... intended fundamentally to

sher traditional preemption analysis.” /d. Accordingly,

the Court concluded that where a challenged state law

“*stands as an obstacle to ry rT on i the a

purposes and objectives of Congress,’” implied conflict

preemption occurs even if that state law also falls within

the protective ambit of a general savings clause. /d.

(citation omitted). The same reasoning leads inexorably

to the conclusion that implied preemption analysis is ap-

propriate in this case as well, even assuming arguendo

that Congress intended § 1397(k) to be a savings clause

and that it extends to petitioners’ claims.

B. The Evisceration Of Implied Preemption

Analysis Sought By Petitioners And Their

Amici Would Work A Dramatic And Disas-

trous Shift In The Balance Of State And Fed-

eral Power

Not content with petitioners’ baseless attempt to

pretermit implied preemption analysis in this case, peti-

tioners’ amici level an even more sweeping (but equally

baseless) attack on the doctrine of implied preemption.

They argue that “the scope of implied conflict preemp-

tion in cts liability cases should be narrowly cir-

cumscribed” and “tightly constrained.” Br. Amicus Cu-

riae of Robert B. Leflar, et al. (“Leflar Br.”), at 6, 14.

Indeed, these amici assert that implied preemption is al-

together inappropriate unless Congress or a federal

regulatory agency has expressly dictated that a particular

18

federal standard “and no other” should govern the prod-

uct at issue. Jd. at 14 (citation omitted; hasis added).

Adoption of this view, of course, would effectively

eliminate implied preemption analysis altogether, be-

cause an express statement of federal exclusivity would

be required before preemption could occur.

Nothing in law or policy rts this proposed

drastic restriction of the scope of federal preemption.

This Court’s well-established ption case law

makes clear that state law is displaced where “Congress

intended federal law to occupy a field exclusively,”

where “it is ‘impossible for a private party to comply

with both state and federal requirements,” or where

“state law ‘stands as an obstacle to the accomplishment

and execution of the full p es and objectives of

Congress.”” Freightliner, 514 U.S. at 287. Petitioners

and their amici offer no justifications for departing from

this well-established line of precedent, nor could they.

If anything, recent developments and trends in state

tort law reveal an enhanced need for vigorous enforce-

ment of implied preemption principles and related con-

stitutional mandates in order to shield our national econ-

omy from the increasing burdens placed upon it by un-

constrained, arbitrary, inconsistent, and excessive tort

verdicts and ever-expanding liability rules. Indeed, an

examination of the rationale for the existence of Con-

gress’s power to preempt state economic regulation re-

veals that it is precisely these types of state-law excesses

that justify fal require the exercise of preemptive power

oe and enforcement of that power by the fed-

courts.

Congress’s power to regulate our national economy

and preempt undesirable or inconsistent state regulations

rests, of course, on the Commerce Clause (in conjunc-

tion with the Supremacy Clause). U.S. CONST. art. I,

§ 8, cl. 3; id. art. VI, cl. 2. The historical record clearly

reveals that the Commerce Clause was adopted precisely

in order to avoid the deleterious effects of excessive, in-

ee ee

19

consistent, and discriminatory state regulation of inter-

state commerce in a manner contrary to the interests of

the Nation as a whole.

The Articles of Confederation did not confer power

over interstate commerce upon the federal government

and, as James Madison explained, this “want of a gen-

eral power over Commerce led to an exercise of this

power separately, by the States, w[hi]ch not only proved

abortive, but engendered rival, conflicting and angry

regulations.” 3 RECORDS OF THE FEDERAL CONVEN-

TION, at 547-48 (Max Farrand ed., 1911). The adoption

of the Commerce Clause thus “reflected a central con-

cern of the Framers that was an immediate reason for

calling the Constitutional Convention: the conviction

that in order to succeed, the new Union would have to

avoid the tendencies toward economic Balkanization that

had plagued relations among the Colonies and later

among States under the Articles of Confederation.”

Hughes v. Oklahoma, 441 U.S. 322, 325-26 (1979).

In drafting the Commerce Clause, therefore, a central

goal of the Framers was to deny States “[t]he opportuni-

ties ... of rendering others tributary to them, by com-

mercial regulations,” THE FEDERALIST NO. 7, at 30

(Alexander Hamilton) (Bantam ed. 1982). What the

Framers hoped to create was “an unrestrained inter-

course between the States themselves [that would] ad-

vance the trade of each, by an interchange of their re-

spective productions,” and to ensure that “Commercial

enterprise [would] have much greater scope” than it had

under the Articles of Confederation. THE FEDERALIST

No. 11, at 53 (Alexander Hamilton).

The dramatic transformation of state tort law and

practice over the past several decades has given rise to

many of the same problems and concerns that originally

impelled the Framers to grant control over interstate

commerce to the federal government. Tort verdicts

readily transmogrify from tion for individual

plaintiffs into edicts that restructure national markets and

20

industries. The general economic interests of the Nation

are increasingly being sacrificed on the altar of the paro-

chial interests of particular states, as declared by local

state judges and lay juries.

When dealing with products that move in a national

market, individual states simply cannot, as a federalist

ideal would suggest, serve as laboratories conducting

“economic experiments without risk to the rest of the

country,” New State Ice Co. v. Liebmann, 285 U.S. 262,

311 (1932) (Brandeis, J., dissenting). To the contrary,

the rest of the Nation actually bears the risks of such ex-

periments by individual states. When a state’s tort sys-

tem imposes extra costs by means of stricter liability,

often accompanied by draconian awards of punitive

damages, manufacturers are forced to spread those costs

to the other states in which their products are sold. See

Michael W. McConnell, A Choice-of-Law Approach to

Products-Liability Reform, in NEW DIRECTIONS IN

LIABILITY LAW 90, 92 (Walter Olson ed., 1988). As a

result, the effects of even a small minority of states’ un-

duly strict liability standards come to be felt by consum-

ers in all states. They must either pay higher prices or

lose the option to buy ucts that have been with-

drawn from the market use potential liability costs

or litigation expenses are simply too high.

Thus, given the realities of today’s national product

markets, the Nation as a whole is increasingly being held

hostage to errors made by individual states—or individ-

ual juries—in the direction of over-deterrence. Regula-

tion through common-law tort verdicts and court deci-

sions is a particularly problematic mechanism for such

over-deterrence, because common-law decisionmaking

is notoriously ill-suited to the establishment of nation-

wide standards that strike the proper balance among the

multitude of societal interests at stake in a particular

regulatory setting. Common-law adjudication is de-

signed to take account only of the facts of individual

cases and is narrowly circumscribed by the nature of the

21

adversary process, the rules of evidence, and other tradi-

tional constraints on judicial decisionmaking. In the

Se ee

ver, there is often little contest between sympathy for a

local plaintiff and feelings about a wealthy, out-of-state

corporate defendant, especially when a skilled plaintiff's

attorney tugs on their ings. See, e.g., Richard

Neely, THE PRODUCT LIABILITY MESS 10-11 (1988).

The inevitable result is over-deterrence as local judges

and juries advance parochial local interests at ex-

pense of the Nation’s interest in a strong national econ-

omy.

When juries do render pro-plaintiff verdicts, more-

over, the repercussions are often vastly amplified by the

current trends in tort law. This Court scarcely needs to

be informed of the increasing use of massive class ac-

tions or of the skyrocketing rises in punitive-damages

awards. These factors alone catapult state tort systems

out of the world of mere compensation in individual

cases; even aberrational verdicts can now have crushing

effects on manufacturers. In addition, with the liberali-

zation of rules governing personal jurisdiction, venue,

forum non conveniens, and conflict-of-laws doctrines,

aintiffs can often gain access to those state courts that

ve the most favorable substantive law. See Piper Air-

craft Co. v. Reyno, 454 U.S. 235, 250 (1981) (“Jurisdic-

tion and venue requirements are often easily satisfied.

As a result, many plaintiffs are able to choose from

among several forums. Ordinarily, these plaintiffs will

select that forum whose choice-of-law rules are most ad-

vantageous.”); see also Gita F. Rothschild, Forum Shop-

ping, 24 LITIGATION 40, 40 (Spr. 1998) (“[T]he expan-

sion of personal jurisdiction in /nternational Shoe Co. v.

Washington, together with the nationwide business ac-

tivities of many large enterprises, have increased plain-

tiffs’ forum options and made forum shopping a com-

mon practice.”’) (citation omitted).

22

Inordinate costs are levied on businesses not only by

the imposition of excessive liability in a few states, but

also by Melinle jay @ of varying standards in all of the

states. M ury verdicts, delivered in multiple ju-

risdictions, Need ax disparate standards that take ac-

count of different theo g aoe combine with other state and

local legislation and regulation to make it difficult to as-

certain what the applicable standards are, much less to

comply with them all simultaneously. Such unpredict-

ability and inconsistency can stultify economic prosper-

ity as much as the welter of local tariffs the Framers

sought to eradicate in 1787.

Given all of these factors, it is not surprising that

products are often withdrawn from the market and

manufacturers driven into bankruptcy by a tower of law-

suits later seen to be without true foundation—most re-

cently and dramatically in the case of breast implants.

See, e.g., David E. Bernstein, The Breast Implant Fi-

asco, 87 CAL. L. REV. 457 (1999) (reviewing MARCIA

ANGELL, SCIENCE ON TRIAL (1996)); Mare M. Arkin,

Products Liability and the Threat to Contraception,

Manhattan Institute Civil Justice Memo No. 36 (Feb.

1999) <http://www.manhattan-institute.org/html/cjm_36

.htm> (describing lawsuits that led to withdrawal of

Copper-7 IUD from market).

Less apparent, but equally real, are the costs imposed

on society by the loss of potentially beneficial products

that are never developed, or never released to market,

because of concerns about potential liability. See, e.g.,

Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal,

Inc., 492 U.S. 257, 282 (1989) (O” Connor, J., concurring

in apts and d dissenting in part) (“Some manufacturers of

un F . have decided that it is better to

pater eae iability than to introduce a new pill or

vaccine into the market. Similarly, designers of air-

planes and motor vehicles have been forced to abandon

new projects for fear of lawsuits that can often lead to

awards of punitive damages.”) (citations omitted);

23

Wayne C. Koff, The next steps toward a global AIDS

vaccine, SCIENCE, Nov. 25, 1994, at 1335 (risk of tort li-

ability is a “ si gnificant economic disincentive[]” that has

seco lah “Sestin Giedaiiiatenten to dindlaaia or enalo

back AIDS vaccine development”).

Every state of the Union suffers these adverse conse-

quences of the current tort system, even if only a relative

handful of states is to blame for the over-regulation and

over-deterrence resulting from out-of-control tort ver-

dicts and lawsuit abuse. Manufacturers and other busi-

nesses releasing their products or services into the

stream of commerce have no choice but to tailor their

productive activities to take account of the most exces-

sive and burdensome version of state tort-law

schemes. Thus, non-preemption should not be blithely

equated with true federalism. In a national market, the

common-law tort system itself shows scant respect for

the autonomy of those states that choose to adopt more

reasonable standards of tort liability in a vain attempt to

avoid the disadvantages of over-deterrence. Where each

state is already beholden to the whims and vagaries of

judges and juries in other states, federal ion does

not shatter a perfect picture of states’ ri

Given these realities of our modern national econ-

omy and tort system, it is more important than ever that

the federal courts vigorously police the boundaries be-

tween federal and state authority to ate economic

activity, because only if the courts are diligent in striking

down excessive local regulation will this Nation’s citi-

zens continue to enjoy the fruits of a truly national econ-

omy that the Framers sought to obtain more than two

centuries ago. Rather than weakening the doctrine of

implied preemption out of manufactured concerns for

“federalism,” as petitioners and their amici would have

it, the federal courts should instead redouble their vigi-

lance in this area. Implied preemption is absolutely es-

sential whenever state courts and local juries take steps

to impinge upon the province of federal regulatory re-

24

gimes that enhance the efficiency and productivity of the

national economy by providing consistent nationwide

standards and implicitly displacing the of

often-inconsistent local regulations and .

When federal regulators have made a considered de-

termination about what specifications a product in inter-

state commerce must meet (after evaluating the costs and

benefits to be borne by the Nation as a whole), it be-

comes especially likely that any stricter requirement im-

posed by an isolated state court or jury will not only

spawn confusion but also be inconsistent with the needs

and broader interests of the national economy. Although

petitioners’ amici argue that federal regulators are less

able to impose appropriate safety regulations than are

state court judges and juries (e.g, Leflar Br. 12-13), that

contention is flatly inconsistent with the reality that fed-

eral agencies like the Department of Transportation are

well suited to weigh competing interests and adopt ap-

propriate and uniform national standards to govern par-

ticular aspects of the national economy. See, e.g., Motor

Vehicle Mfrs. Ass'n of the U.S., Inc. v. State Farm Mut.

Auto. Ins. Co., 463 U.S. 29, 33 (1983) (Congress

adopted the Act and granted the Secretary authority to

establish motor vehicle safety standards because “con-

siderable e ise” is required to determine appropriate

standards; “(bjefore changes in automobile design could

be mandated, the effectiveness of these changes had to

be studied, their costs examined, and public acceptance

considered”).

Indeed, federal agencies typically enjoy the benefits

of specialized expertise and utilize procedures designed

to ensure that they consider the views of all affected

groups. As a consequence, uniform national standards

adopted by federal agencies offer considerable advan-

tages over the alternative mechanism urged by petition-

ers, namely, the continued imposition of arbitrary, un-

predictable, inconsistent, and excessively strict post hoc

standards selected on the basis of limited information by

25

state courts and juries. Far from adopting a stance of

heightened judicial skepticism towards the doctrine of

implied preemption, therefore, this Court should instead

take this opportunity to reemphasize the need for, and

the jety of, strict judicial enforcement of uniform

nati standards in instances where, as here, those

standards have been established by the federal agency

charged by Congress with responsibility for promulgat-

standards.

ing uniform

Petitioners and their amici make much of what they

characterize as the “presumption” against preemption,

but in reality there is no conflict between that “pre-

sumption” and the analysis set forth above. While this

Court has traditionally approached every preemption

case with an appropriate sense of respect for the author-

ity of state governments within their spheres of :

sibility, it is equally important to avoid frustrating Con-

sae purposes—and the overarching goals of the

Commerce Clause—by eviscerating the benefits of uni-

form national standards that have been authorized by

federal legislation and adopted by responsible federal

agencies.

Properly understood, in fact, there is no meaningful

“presumption” against implied preemption of state-law

requirements that are inconsistent with uniform federal

standards imposed pursuant to a comprehensive federal

regulatory scheme. To be sure, this Court has stated that

when Congress has “legislated .. . in a field which the

States have traditionally occupied,” the Court will “start

with the assumption that the historic police powers of

the States were not to be superseded by the Federal Act

unless that was the clear and manifest purpose of Con-

gress.” Rice v. Santa Fe Elevator Corp., 331 U.S. 218,

230 (1947), quoted in cn 51 , U.S. at 485. om

that bac ion no force in an i

Gin cots Setmii doses ann bo ao sasas for docht

that Congress intended to inconsistent or con-

flicting state laws; indeed, the Supremacy Clause renders

26

all such laws null and void. U.S. CONST. art. VI, cl. 2.

Accordingly, “[wJhere, as here, the issue is one of an as-

serted substantive conflict with a federal enactment, then

‘(t]he relative importance to the State of its own law is

not material ... for the Framers of our Constitution

provided that the federal law must prevai il.”” Brown v.

Hotel & Rest. Empls. & Bartenders Int'l Union Local

54, 468 U.S. 491, 1. 503 (1984) Fy Free v. Bland,

369 U.S. 663, 666 ( (1962)); acco Felder v. Casey,

487 U.S. 131, 138 (1988).

The “presumption” against preemption is doubly in-

appropriate in cases like this one that involve the clash

between uniform federal standards and state tort suits

because, as noted above, the modern tort system has

been transformed into a full-fledged regulatory scheme

that allows individual states (or, more precisely, state

judges and juries) to exert power and influence far be-

yond their borders, un ining or eliminating the abil-

ity of other states to choose different, and less excessive,

regulatory schemes. Thus, the se that federal

preemption of liberal state-law liability standards some-

how nett state sovereignty and requires a “pre-

sumption” against preemption has absolutely no force;

state “sovereignty” is already undermined by the exces-

sive regulatory schemes imposed by some states on the

Nation at large, and the actions of Con and federal

agencies in promulgating uniform balanced stan-

dards serve only to bring the federal s back into

balance, as avalos or the Framers when they granted

Congress the commerce power more than two centuries

ago.

27

CONCLUSION

For the ing reasons, the judgment of the court

of appeals should be affirmed.

Respectfully submitted.

Of Counsel: THEODORE B. OLSON

ROBIN S. CONRAD Counsel of Record

NATIONAL CHAMBER THEODORE J. BOUTROUS, JR.

LITIGATION CENTER, INC. | THOMAS G. HUNGAR

1615 H Street, N.W. GIBSON, DUNN & CRUTCHER LLP

bet ows we D.C. 20062 1050 Connecticut Avenue, N.W.

(202) 463-5337 Washington, D.C. 20036

(202) 955-8500

Counsel for Amicus Curiae

November 19, 1999