Opposition Brief — Ford Motor Co. v. Tebbetts

Fe Supreme Court, U.S.

\a) FILED

os 4

No. 95-709

CLERK

IN THE

Supreme Court of the Hnited States

OCTOBER TERM, 1995

Ford Motor Company and

Robert H. Irwin Motors, Inc.,

Petitioners,

Vv.

Jo-Ann Tebbetts, Administratrix of the Estate of

Rebecca Anne Tebbetts,

Respondent.

On Petition for a Writ of Certiorari to the

Supreme Court of New Hampshire

BRIEF IN OPPOSITION

Edgar D. McKean, III Arthur H. Bryant

McKean, Mattson and (Counsel of Record)

Latici, P.A. Trial Lawyers for Public

Village West, P.O. Box 7386 Justice, P.C.

Gilford, NH 03247-7386 1717 Massachusetts

(603) 524-4747 Ave., N.W., Suite 800

Washington, D.C. 20036

(202) 797-8600

Attorneys for Respondent

QUESTION PRESENTED

Whether this Court should review the Supreme Court of

New Hampshire’s unanimous ruling that the Ford Motor

Company’s compliance with a Federal motor vehicle safety

standard issued pursuant to the National Traffic and Motor Vehicle

Safety Act of 1966 ("the Safety Act") does not exempt Ford from

liability under state common law when: (1) the ruling is the first

issued by a state court of last resort or a U.S. court of appeals on

the preemptive effect of the Safety Act since this court decided

Cipollone v. Liggett Group, Inc., and Freightliner Corp. v. Myrick,

and (2) the Safety Act explicitly says "[cJompliance with any

Federal motor vehicle safety standard issued under this subchapter

does not exempt any person from any liability under common

law."

TABLE OF CONTENTS

oe i

pe ee iii

RUNDE OP BOE GAIEE. 2 tcc cc crocs 1

REASONS FOR DENYING THE PETITION .......... 5

I. THE DECISION BELOW CREATES NO

CONFLICT BECAUSE IT IS THE FIRST

RULING ISSUED BY A STATE COURT OF

LAST RESORT OR A U.S. COURT OF

APPEALS ON THE PREEMPTIVE EFFECT OF

THE SAFETY ACT SINCE THIS COURT

CLARIFIED THE LIMITS ON IMPLIED

PREEMPTION ANALYSIS IN CIPOLLONE

SS COME ss cas 6 a vs eb 8 e's 0 a 5

Il. THE DECISION BELOW IS_ ENTIRELY

CONSISTENT WITH THIS COURT’S

DECISIONS GOVERNING PREEMPTION

I alk Wiki b wib'ais a sc e'S es 0 te 12

EE PRE Ans 6 Vd wine ee bs bee Gece ek 19

il

TABLE OF AUTHORITIES

Cases:

Arbet v. Gussarson,

66 Wis.2d 551, 225 N.W.2d 431 (1976) ............ 6

California Federal Savings and Loan Association v.

Ga See a Eo ce cecdiesseuen 17, 18

Cipollone v. Liggett Group, Inc.,

SES Bi Maas vk choke ercemans passim

Cipollone v. Liggett Group, Inc.,

789 F.2d 181 (3d. Cir. 1986),

rev'd in part and aff'd in part,

SES Fats EE 23 oe Gh ss OO Rw IY © Ue Ee vec 6

Dawson v. Chrysler Corp..,

630 F.2d 950 (3d Cir. 1980), cert. denied,

ef Re ae eS re ere 6

Dorsey v. Honda Motor Co. Lid.,

655 F.2d 650 (Sth Cir. 1981), cert. denied,

GP es RS eet twa Vir Ve eh wee awe 6

Ferebee v. Chevron Chemical Co.,

736 F.2d 1529 (D.C. Cir.), cert. denied,

ac ED 625.2 Biv aid Ose 0 4) ROOD Ao ws 10

Fox v. Ford Motor Co.,

- Be , t. Ls A Rs Pore wa 6

Freightliner Corp. v. Myrick,

fo; Ee pf IRE eg a seer ee > passim

General Motors Corp. v. Edwards,

Ga ee Bes BE ic Gc ave tacwctintsen 6

H.P. Hood & Sons, Inc. v. Ford Motor Co.,

370 Mass. 69, 345 N.E.2d 683 (1976) ............... 6

Hernandez-Gomez v. Volkswagen of America, Inc.,

884 P.2d 183 (Az. 1994), vacated and remanded,

Se ee S'S vo wate 0S 4 ee ee 9, 10

Honda Motor Co. v. Kimbrel,

376 S.E.2d 379 (Ga. Ct. App. 1988) ............ 12, 14

King v. Collagen Corp.,

983 F.2d 1130 (1st Cir.), cert. denied,

Dae OCI Gon 0's Wie ls Gibia blew ke.ele 6 od 10

Kitts v. General Motors Corp,

875 F.2d 878 (10th Cir. 1989), cert. denied,

Te Nhe so aw SSS 6 a wae 5, 13

Knippen v. Ford Motor Co.,

el ee 6

Larsen v. General Motors Corp.,

a ee ee ee 6

Michael v. Shiley, Inc.,

46 F.3d 1316 (3d Cir.), cert. denied,

GS UB.aaw i gere Ct. 2, 1998)... ek ce ee es 10

Motor Vehicle Manufacturers Association v.

State Farm Mutual Automobile Insurance Co.,

ep et ge EN ee ee 15, 16, 18

Myrick v. Freuhauf Corp.,

13 F.3d 1516 (11th Cir. 1994),

aff'd sub nom. on other grounds,

en EN oe a Wa wk eel ew OW ow es 8,9

Palmer v. Liggett Group, Inc.,

MNOS SOOO) 6 kc ede cee coreeees 7

Papas v. Upjohn Co.,

985 F.2d 516 (11th Cir.), cert. denied,

Pee ee ED 5 0 oe CSS oN 60 S's Seb de Sls 10

Pokorny v. Ford Motor Co.,

902 F.2d 1116 (3d Cir.), cert. denied, .

pe ee I te & Ne UN SS a Wie SW we 5, 13

Schwartz v. American Honda Motor Co., Inc..,

pg er 6

Shipp v. General Motors Corp.,

Cee FO ee ee 6

Sours v. General Motors Corp.,

SBE ee NE TID obo ok CR hae he wees 6

Stephen v. American Brands, Inc.,

ae ae eae CEE SD os nk ees ole ee See ews 7

iv

Stonehocker v. General Metors Corp.,

SS Fae BOE CG UPD Fe ees ete been 6

Taylor v. General Motors Corp.,

875 F.2d 816 (11th Cir. 1989), cert. denied,

Se aia: HE te Ae bo ee tebe ed ot ee otc 5,9, 13

United States v. James,

et EL eo. a:0 p's 6 ow Fa 4 OB 0 0b 0 HON Oh 3

Volkswagen of America, Inc. v. Young,

272 Md. 201, 321 A.2d 737 (Md. App. 1974) ......... 6

Wood v. General Motors Corp.,

865 F.2d 395 (1st Cir. 1988), cert. denied,

GPG ia PEED wee vec vecteee¥e 4, 5, 7, 13, 19

Statutes and Regulations:

a RT Fd ccc el vere WE Vs 1, 12, 18

a AS 7 oe ee iF A! 2

ee EE oo cc co c.0 0 bbb ee Velews women 11

ee eT, cock reete ee eerere’ passim

Se ee Eo 6 6 wba" 6b bie bie cee we On 2, 11

Se Ek ed dw eve ved el bees 4s beets passim

Legislative History:

Hearings Before the Committee on Interstate and Foreign

Commerce of the House of Representatives, 89th Cong.,

eB CE Gob eS ee Oo be wee eee 15

H.R. Rep. No. 1776, 89th Cong., 2d Sess. 24 (1966) .. 3, 15

Pub. L. No. 103-272, § 1(a), 108 Stat. 745 (1994) ....... 2

Sie Cas Ss PEO CD occ e Newb ee ci wee cece 14

S. Rep. No. 1301, 89th Cong. 2d Sess. 12 (1966) ...... 14

Miscellaneous:

Paul Deuffert, The Role of Regulatory Compliance in

Tort Actions, 26 Harv. J. on Legis. 175 (1989) ....... 13

Restatement (Second) of Torts 288C (1964)........... 13

v

STATEMENT OF THE CASE

On May 15, 1991, the 1988 Ford Escort that Rebecca

Anne Tebbetts was driving hit a rock, swerved off the road, and

ran into a tree. The car was equipped with a manual lap belt,

which Rebecca had connected, and a motorized shoulder harness,

but it was not equipped with a driver’s-side air bag. The lap belt

and shoulder harness restrained Rebecca to some extent, but she

still hit the steering wheel with such force that she died.

On January 29, 1993, Rebecca’s mother, serving as the

administratrix of her estate, filed this suit under New Hampshire

common law against the Ford Motor Company and Robert H.

Irwin Motors, Inc. (collectively "Ford"), alleging that the 1988

Ford Escort driven by Rebecca was negligently designed because

it lacked a driver’s-side airbag. The suit further alleges that, if the

car had contained a driver’s-side airbag, Rebecca would have

survived the crash.

When the 1988 Ford Escort driven by Rebecca Tebbetts

was manufactured, federal regulations promulgated pursuant to the

National Traffic and Motor Vehicle Safety Act of 1966 ("the

Safety Act") - specifically, Federal motor vehicle safety standard

208 -- did not prohibit Ford from installing airbags in the Ford

Escort or any other car. Standard 208 did, however, require Ford

to install some form of passive restraint in at least 25 percent of its

1988 model-year cars. 49 C.F.R. § 571.208. It also required all

cars to have, at a minimum, either a manual lap belt and shoulder

harness, a manual lay. elt and motorized shoulder harness, or an

airbag or other device that provided automatic protection to vehicle

occupants. Jd. In this case, the complaint alleges that Ford acted

negligently by failing to do more than the minimum that Standard

208 required.

On August 11, 1993, Ford moved for summary judgment

asserting that, even if all of the allegations in this case are true,

Ford’s compliance with Standard 208 exempts it from liability

under New Hampshire common law. Two months later, the trial

court granted Ford’s motion. Relying heavily on four federal

appeals court rulings issued before this Court’s decision in

Cipollone v. Liggett Group, Inc., 112 S. Ct. 2608 (1992)

("Cipollone"), the trial court held that plaintiff's claims are

impliedly preempted. Petitioners’ Appendix ("Pet. App.") at 10a.

On appeal, the Supreme Court of New Hampshire

unanimously reversed. In a decision issued on September 19,

1995, it briefly reviewed the facts and the applicable law, taking

special note of this Court’s recent decisions clarifying preemption

analysis in Cipollone and Freightliner Corp. v. Myrick, 115 S. Ct.

1483 (1995) ("Myrick"). In accordance with those decisions, the

Supreme Court of New Hampshire then addressed the issues of

express and implied preemption.

On the issue of express preemption, the Court held that

Congress had made its intent clear by enacting the Safety Act’s

saving clause, 15 U.S.C. § 1397(k).' That section provides:

"Compliance with any Federal motor vehicle safety standard issued

under this subchapter does not exempt any person from any

liability under common law." Jd. The Court acknowledged that

the Safety Act also contains an express preemption clause which

prohibits a State from establishing a safety standard "which is not

identical to the Federal standard," Pet. App. at 4a (quoting 15

U.S.C. § 1392(d)), and that "[a] rule of the common law which

permits the recovery of monetary damages for its breach self-

evidently sets a standard. . ." Pet. App. at 4a. It said, however,

that the preemption clause could not be "read in isolation" and had

to be interpreted "in tandem with the saving clause." Jd. at 4a-Sa.

Emphasizing the unequivocal wording of the saving clause, the

'The Safety Act, 15 U.S.C. §§ 1381 ef seg., and other statutes

governing transportation were recently recodified “without substantive change.”

Pub. L. No. 103-272, § 1(a), 108 Stat. 745 (1994). As a result, what was 15

U.S.C. § 1397(k) is now 49 U.S.C. § 30103(e). All of the applicable preemption

cases, including the decisions by the two courts below, discuss the provisions as

Citations employed in those decisions.

Court said, "It is difficult to imagine broader language." Pet.

App. at 5a (quoting United States v. James, 478 U.S. 597, 604

(1986)). It, therefore, held that “state common law is not

explicitly preempted." Pet. App. at Sa.

On the issue of implied preemption, the New Hampshire

Supreme Court recognized that this Court’s decision in Cipollone

"clarified preemption analysis" by stating as follows:

When Congress has considered the issue of

preemption and has included in the enacted

legislation a provision explicitly addressing that

issue, and when that provision provides a reliable

indicium of congressional intent with respect to

state authority, there is no need to infer

congressional intent to pre-empt state laws from

the substantive provisions of the legislation.

Pet. App. at 4a (quoting Cipollone, 112 S. Ct. at 2618). The New

Hampshire Supreme Court also recognized the teaching of this

Court’s then five-month-old decision in Myrick that "Cipollone

supports an inference that an express preemption clause forecloses

implied pre-emption[,] it does not establish a rule." Pet. App. at

4a (quoting Myrick, 115 S. Ct. at 1488).

Based on the foregoing, the Court stated that its first task

with respect to implied preemption was to determine whether the

Safety Act or its legislative history "provides a reliable indicium

of congressional intent with respect to state authority.” Pet. App.

at Sa (quoting Cipollone, 112 S. Ct. at 2618). After reviewing the

legislative history, it determined that, by inserting the saving

clause, Congress intended, in the words of the House committee

report, "that compliance with safety standards is not to be a

defense or otherwise to affect the rights of parties under common

law particularly those relating to warranty, coritract, and tort

liability." Pet. App. at 6 (quoting H.R. Rep. No. 1776, 89th

Cong., 2d Sess. 24 (1966)).

Given the clarity of the Safety Act’s language and

legislative history, the New Hampshire Supreme Court concluded

that, under Cipollone, there was no reason to consider the issue of

implied preemption further. It said:

Having determined that the preemption clause

when read in tandem with the saving clause

“provides a reliable indicium of congressional

intent with respect to state authority, there is no

need to infer congressional intent to pre-empt state

laws from the substantive provisions of the

legislation." Cipollone, 112 S. Ct. at 2618

(citation and quotation omitted).

Pet. App. at 6a. The Court acknowledged Ford’s argument “that

the majority of courts faced with a similar preemption inquiry have

held common law actions preempted," citing Wood v. General

Motors Corp., 865 F.2d 395 (ist Cir. 1988), cert. denied, 494

U.S. 1065 (1990) (finding no express preemption, but implied

preemption, of common law claims). Pet. App. at 6a. But it

found those implied preemption decisions unconvincing because of

this Court’s intervening decision in Cipollone. “Had the United

States Supreme Court not clarified preemption analysis in

Cipollone subsequent to Wood,” the Court said, "Ford’s argument

would be more persuasive." Pet. App. at 6a.

"[W]hile it remains to be seen whether a jury in this case

will find that Ford acted unreasonably, notwithstanding its alleged

compliance with Standard 208," the Court concluded, “the issue

before this court at this time is whether the plaintiff has a right to

ask the jury to decide. We hold that on these issues she does."

Id. (quotation marks and brackets omitted). Ford now seeks

review by this Court to prevent any trial from taking place.

REASONS FOR DENYING THE PETITION

I, THE DECISION BELOW CREATES NO CONFLICT

BECAUSE IT IS THE FIRST RULING ISSUED BY A

STATE COURT OF LAST RESORT OR A U.S.

COURT OF APPEALS ON THE PREEMPTIVE

EFFECT OF THE SAFETY ACT SINCE THIS

COURT CLARIFIED THE LIMITS ON IMPLIED

PREEMPTION ANALYSIS IN CIPOLLONE AND

MYRICK.

Ford’s primary argument is that review is necessary

because the decision below directly conflicts with Wood, 865 F.2d

395, and three other federal appeals court decisions finding

common law claims involving passive restraints impliedly, but not

expressly, preempted - Pokorny v. Ford Motor Co., 902 F.2d

1116 (3d Cir.), cert. denied, 498 U.S. 853 (1990); Taylor v.

General Motors Corp. 875 F.2d 816 (11th Cir. 1989), cert.

denied, 494 U.S. 1065 (1990); Kitts v. General Motors Corp, 875

F.2d 878 (10th Cir. 1989), cert. denied, 494 U.S. 1065 (1990).

As the Supreme Court of New Hampshire found, if this Court had

not "clarified preemption analysis in Cipollone subsequent to Wood

[and the other decisions], Ford’s argument would be more

persuasive." Pet. App. at 6a.

The Supreme Court of New Hampshire’s decision creates

no conflict because it is the first ruling issued by a state court of

the last resort or a federal appeals court on the Safety Act’s

preemptive effect since this Court clarified the limits on implied

preemption analysis in Cipollone and Myrick. There is no good

reason to review this decision at this time. The Supreme Court of

New Hampshire’s ruling is wholly consistent with the unanimous

appellate rulings issued during the Safety Act’s first twenty years,

before the Third Circuit improperly expanded implied preemption

in Cipollone. The four federal appeals court implied preemption

decisions (and others) relied upon by Ford are of no moment.

They were issued before this Court rejected the Third Circuit’s

approach in Cipollone and do not establish an existing conflict. To

the contrary, as the history of Myrick reflects, they will inevitably

be reconsidered (and should properly be rejected) in light of this

Court’s recent rulings. To demonstrate these points, a brief

review of the cases interpreting the Safety Act’s preemptive effect

is in order.

The Safety Act was enacted in 1966. Over the next twenty

years, eight federal appeals courts and five state courts of last

resort addressed the issue of whether compliance with Federal

motor vehicle safety standards exempts auto manufacturers from

liability in design defect cases. Each reached the same conclusion:

Congress’s words mean what they say - "Compliance with any

Federal motor vehicle safety standard . . . does not exempt any

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

1397(k).?

In 1986, however, the U.S. Court of Appeals for the Third

Circuit issued its since-rejected decision in Cipollone v. Liggett

Group, Inc. , 789 F.2d 181 (3d. Cir. 1986), rev’d in part and aff'd

in part, 112 S. Ct. 2608 (1992), expanding the implied preemption

doctrine to find certain common law claims involving cigarettes

preempted despite Congress’s intent to the contrary. Within a

See Knippen v. Ford Motor Co. , $46 F.2d 993, 1000 (D.C. Cir. 1976);

Dawson v. Chrysler Corp., 630 F.2d 950, 957-58 (3d Cir. 1980), cert. denied,

450 U.S. 959 (1981); Stonehocker v. General Motors Corp., 587 F.2d 151, 156-

57 (4th Cir. 1978); Dorsey v. Honda Motor Co. Lid., 655 F.2d 650, 656-57 (Sth

Cir. 1981), cert. denied, 459 U.S. 880 (1982); Shipp v. General Motors Corp.,

750 F.2d 418, 421 (Sth Cir. 1985); Sours v. General Motors Corp., 717 F.2d

1511, 1516-17 (6th Cir. 1983); Schwartz v. American Honda Motor Co., Inc.,

710 F.2d 378, 383 (7th Cir. 1983); Larsen v. General Motors Corp., 391 F.2d

495, 506 (8th Cir. 1968); Fox v. Ford Motor Co., 575 F.2d 774, 778 (10th Cir.

1978); General Motors Corp. v. Edwards, 482 So.2d 1176, 1198 (Ala. 1985);

Volkswagen of America, Inc. v. Young, 272 Md. 201, 321 A.2d 737, 746 (Md.

App. 1974); H.P. Hood & Sons, Inc. v. Ford Motor Co., 370 Mass. 69, 345

N.E.2d 683, 688 (1976); Arbet v. Gussarson, 66 Wis.2d 551, 225 N.W.2d 431,

438 (1976).

EE

year, the First and Eleventh Circuits issued similar decisions.

Palmer v. Liggett Group, Inc., 825 F.2d 620 (1st Cir. 1987);

Stephen v. American Brands, Inc. , 825 F.2d 312 (11th Cir. 1987).

Before this Court had an opportunity to overturn these

decisions, the defective strain of implied preemption analysis

adopted in the cigarette cases infected the interpretation of the

Safety Act. In 1988, the First Circuit heard Wood, 865 F.2d 395,

in which General Motors was, once again, arguing that it was

exempt from common law liability because it had complied with

a Federal motor vehicle safety standard -- specifically, Standard

208 governing occupant restraints. In a two-to-one decision, with

Judge Selya dissenting, the First Circuit explicitly adopted the

: rationale of Palmer, its recent cigarette labeling decision, and

became the first appeals court in the nation to find a common law

claim impliedly preempted by the Safety Act, despite Congress’s

clear statement of anti-preemptive intent. Wood, 865 F.2d at 410-

11. In the next three years, the Third, Tenth, and Eleventh

Circuits (and several lower courts) followed, issuing the other

implied preemption decisions relied on by Ford. See supra at 5.

In 1992, however, this Court issued its decision in

Cipollone, explicitly rejecting the Third Circuit’s (and its sister

courts’) expansion of the implied preemption doctrine. In a

portion of the opinion joined by seven members of this Court, it

said:

In our opinion, the pre-emptive scope of the [two

Statutes at issue] is governed entirely by the

express language in . . . each Act. When

Congress has considered the issue of pre-emption

and has included in the enacted legislation a

provision explicitly addressing that issue, and

when that provision provides a reliable indicium of

congressional intent with respect to state authority,

there is no need to infer congressional intent to

pre-empt state laws from the substantive provisions

of the legislation. Such reasoning is a variant of

the familiar principle of expression unius est

exclusio alterius: Congress’ enactment of a

provision defining the pre-emptive reach of a

statute implies that matters beyond that reach are

not preempted.

112 S. Ct. at 2618.’

Cipollone’s clarification of the limits of implied preemption

analysis effectively invalidated the decisions finding implied

preemption under the Safety Act. Since Cipollone, one federal

court of appeals and two state courts of last resort have considered

the Safety Act’s preemptive effect on common law claims. All

three have found no preemption.

In the first such case, Myrick v. Freuhauf Corp., 13 F.3d

1516 (llth Cir. 1994), aff'd sub. nom on other grounds

Freightliner Corp. v. Myrick, 115 S. Ct. 1483 (1995), the Eleventh

Circuit held that Cipollone negated its prior implied preemption

decision in Taylor and that the Safety Act expressly preserved the

common law claims at issue. Upon review, this Court said that

the Eleventh Circuit had misread Cipollone to hold that implied

preemption is barred whenever Congress includes an express

preemption clause in a statute. Myrick, 115 S. Ct. at 1487. The

Court clarified the proper approach to preemption analysis, saying:

The fact that an express definition of the pre-

‘In language particularly relevant to preemption analysis under the

Safety Act, this Court added: “[T]here is no general, inherent conflict between

federal pre-emption of state warning requirements and the continued vitality of

State common law damages actions. For example, in the Comprehensive

Smokeless Tobacco Health Education Act of 1985, Congress expressly pre-

empted State or local imposition of a ‘statement relating to the use of smokeless

tobacco products and health’ but, at the same time, preserved state law damages

actions based on those products.” Jd. (footnote omitted).

8

emptive reach of a statute “implies” -- i.e.,

supports a reasonable inference -- that Congress

did not intend to pre-empt other matters does not

mean that the express clause entirely forecloses

any possibility of implied preemption... At

best, Cipollone supports an inference that an

express preemption clause forecloses implied

preemption; it does not establish a rule.

Myrick, 115 S. Ct. at 1488. This Court did not address the

Eleventh Circuit’s holding that, under Cipollone, section 1397(k)

constitutes such a “reliable indicium of congressional intent” that

it precludes a finding of implied preemption under the Safety Act.

See Myrick, 13 F.3d at 1525-27, 115 S. Ct. at 1487 n.3. Instead,

this Court unanimously affirmed the Eleventh Circuit’s finding of

no preemption on the ground that there was no relevant Federal

motor vehicle safety standard in effect. Id. at 1485-88.‘

The Supreme Court of Arizona also considered the Safety

Act’s preemptive effect after this Court decided Cipollone, but

before this Court decided Myrick. Relying in part on the Eleventh

Circuit’s decision in Myrick, the Supreme Court of Arizona

unanimously held in Hernandez-Gomez v. Volkswagen of America,

Inc., 884 P.2d 183 (Az. 1994), vacated and remanded, 115 S. Ct.

1819 (1995), that the Safety Act does not preempt a state common

law claim against a car manufacturer for failing to incorporate a

‘Ford’s assertion that this Court's clarification of preemption analysis

in Myrick somehow reinstated Taylor as the law of the Eleventh Circuit is

meritless. This Court made clear in Myrick that implied preemption analysis is

not necessarily foreclosed when Congress has enacted an express preemption

clause that “implies”, but leaves open the question of whether, “other matters"

are preempted. 115 S. Ct. at 1488. In the Safety Act, however, Congress

enacted an express anti-preemption clause that explicitly preserves common law

claims. Cipollone and Myrick both demonstrate that, when.such a “reliable

indicium of congressional intent” exists, the courts cannot contravene Congress’s

statement through use of the implied preemption doctrine. That is exactly what

Taylor did; it is no longer good law.

lap belt into its passive restraint system. After this Court issued

its decision in Myrick, it vacated the Arizona Supreme Court’s

decision in Hernandez-Gomez and remanded that case for

reconsideration in light of its ruling.

The decision by the Supreme Court of New Hampshire in

this case is, therefore, the first ruling by a state court of last resort

or a federal appeals court on the Safety Act’s preemptive effect

since this Court issued both Cipollone and Myrick. It should not

be reviewed at this time because no true conflict exists. Indeed,

there has not been sufficient time since Cipollone and Myrick to

see if such a conflict will develop. This Court has repeatedly

declined to review federal appeals court decisions interpreting the

preemptive effect of other federal statutes on common law claims,

even when clear pre-and/or-post-Cipollone conflicts exist, allowing

the federal circuits and the state courts of last resort to explore and

debate the significance of Cipollone and Myrick statute-by-statute,

without early intervention by this Court. Compare, e.g., Papas v.

Upjohn Co., 985 F.2d 516 (11th Cir.) (federal pesticide legislature

expressly preempts common law claims), cert. denied, 114 S. Ct.

300 (1993), with Ferebee v. Chevron Chemical Co., 736 F.2d

1529 (D.C. Cir.) (federal pesticide legislation neither expressly nor

impliedly preempts common law claims), cert. denied, 469 U.S.

1062 (1984); compare King v. Collagen Corp. , 983 F.2d 1130 (1st

Cir.) (federal medical device legislation expressly preempts

common law misrepresentation and failure to warn claims), cert.

denied, 114 S. Ct. 84 (1993), with Michael v. Shiley, Inc., 46

F.3d 1316 (3d Cir.) (federal medical device legislation does not

preempt common law misrepresentation and failure to warn

claims), cert. denied, 63 U.S.L.W. 3874 (Oct. 2, 1995). It should

follow no different course here.

Ford contends that review is necessary despite the recent

vintage of Cipollone and Myrick because some intermediate state

appeals courts and federal district courts have found implied

preemption under the Safety Act since this Court decided

Cipollone. See Pet. at 10-11. Disagreements at the intermediate

10

state appeals court and federal district court levels, however, are

hardly sufficient to warrant this Court’s review. Ford, therefore,

maintains that the lower court decisions are not simply yielding

different results, but are "eroding the very core of the federal

safety policy" by discouraging “diversity in passive restraint

systems." Jd. at 12. This argument makes no sense. First, if it

was current federal policy to encourage diversity in passive

restraint systems, then disagreements among the lower courts

would presumably reinforce that policy, not erode it. The

manufacturers could hardly be prompted to take uniform actions

by varying court decisions. Second, whether or not it was federal

policy at some time in the past to encourage diversity in passive

restraint systems, it is plainly federal policy today to encourage all

auto manufacturers to install airbags in their cars. See 49 U.S.C.

§ 30127(b) (requiring airbags for front seat drivers and passengers

in at least 95 percent of new cars after August 31, 1996, and 100

percent of new cars after August 31, 1997).

Ford’s real reason for seeking review now is that, if the

lower courts have a chance to consider the implications of

Cipollone and Myrick, they are likely to agree with the Supreme

Court of New Hampshire and reject the pre-Cipollone implied

preemption federal appeals court decisions relied upon by Ford.

Ford virtually concedes as much, saying, "Unless this Court

resolves the conflict and confirms that the federal courts of appeals

are correct and the Supreme Court of New Hampshire incorrect,

more and more plaintiffs are likely to bring ‘no-airbag’ claims,

trying to persuade still more courts to align themselves with the

minority, errant no-preemption view." Pet. at 13. The likelihood

that the lower courts will increasingly reject the petitioner’s

position is hardly a reason for granting review.”

‘Ford also argues that review is needed because, in Myrick, this Court

mentioned but did not resolve two statutory interpretation issues raised by this

case: whether section 1392(d) preempts common law claims and whether section

1397(k) preserves them. See Pet. at 13. That fact, however, does not support

review. There is no need for this Court to resolve those issues now because there

11

Il. THE DECISION BELOW IS_ ENTIRELY

CONSISTENT WITH THIS COURT’S DECISIONS

GOVERNING PREEMPTION ANALYSIS.

Ford’s secondary argument is framed as one of broad

application. Review is necessary, Ford insists, because “the

Supreme Court of New Hampshire misconstrued and misapplied

this Court’s decisions that establish the manner in which

preemption analysis is required to be conducted.” Pet. at 14.

Upon analysis, however, Ford’s argument boils down to the

contention that the Supreme Court of New Hampshire should have

ruled in Ford’s favor. Even if Ford is right, review would not be

warranted on this basis. Moreover, Ford is wrong.

To begin with, Ford maintains that the Supreme Court of

New Hampshire erred in rejecting Ford’s argument that the Safety

Act expressly preempts common law claims. Ford contends that

the lower court "ignore[d] the express preemption provision" of

the Safety Act and "focus[ed] solely on section 1397(k)" which,

Ford says, “is not a saving clause" at all. Pet. at 15-16. In

Ford’s view, section 1397(k) does not address the issue of federal

preemption; it simply addresses the extent to which compliance

with federal regulations is an affirmative defense as a matter of

state law. Jd. at 18-20. Ford says that, in Honda Motor Co. v.

Kimbrel, 376 S.E.2d 379, 383 (Ga. Ct. App. 1988), the court

determined that compliance with federal Standard 208 was a

complete defense under Georgia law to a claim that a car was

defective because it lacked an airbag. /d. at 19. “Section

1397(k),” Ford asserts, "permits a state court to reach that

conclusion, but it expresses Congress’ intent not to mandate that

result." Pet. at 19 (emphasis in original).

This is an astonishing argument. The Supreme Court of

is no serious conflict about them among the state courts of last resort and the

federal circuits. If and when such a conflict develops, this Court can and should

act to resolve it.

12

New Hampshire did not ignore the Safety Act’s express

preemption provision. It considered the provision, as it should

have, “in tandem with the saving clause." Pet. App. at Sa. When

it did so, the Court correctly held, as has every state court of last

resort and every federal appeals court to consider the question --

including the four federal circuits relied upon by Ford — that

section 1397(k) precludes a finding that the Safety Act expressly

preempts common law claims. See, e.g., Pokorny, 902 F.2d at

1120-21; Taylor, 875 F.2d at 823-25; Kitts, 875 F.2d at 789;

Wood, 865 F.2d at 401-02.

Ford’s contention that section 1397(k) addresses the extent

to which compliance with federal regulations is a defense as a

matter of state law makes little sense. Congress was enacting a

federal law, not a state law. It was concerned with the substantive

content of the federal law it was enacting, not the substantive

content of state laws. Furthermore, at the time Congress enacted

the Safety Act (and still today), it was already the law in every

state that compliance with a federal regulation is not an absolute

defense in an action for negligent failure to do more. See

Restatement (Second) of Torts 288C (1964).°

Under Ford’s interpretation of the Safety Act, moreover,

section 1397(k) would be meaningless if it only negated the state

law defense of compliance with an applicable federal regulation.

According to Ford, common law claims against a manufacturer for

failing to do more than an applicable federal safety standard

requires are preempted by the Safety Act’s express preemption

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

Actions, 26 Harv. J. on Legis. 175 (1989) ("[fjor a hundred years courts have

considered axiomatic the common law principle that, against possible liability in

tort, a defendant’s compliance with government statutes and regulations is

admissible only as evidence of the defendant’s exercise of due care. Therefore,

such compliance generally ‘does not prevent a finding of negligence where a

reasonable man would take additional precautions.’”) (citing Restatement)

(footnotes omitted).

13

provision. If that is so, then those common law claims simply

cannot be pursued. The manufacturer would not need any defense

under state law, so there would be no reason for section 1397(k)

to address it. If section 1397(k) did address the content of state

law, however, it would have precisely the opposite effect that Ford

claims: it would not permit state courts to conclude, as Ford says

Georgia’s did in Honda Motor Co. v. Kimbrel, 376 S.E.2d at 379,

that compliance with a Federal standard establishes an absolute

defense against common law liability. Section 1397(k) says

compliance with a Federal standard "does not exempt any person

from any liability under common law." /d. (emphasis added).

Ultimately, Ford’s express preemption argument fails for

the same reason its implied preemption arguments fail: the plain

and unequivocal words of section 1397(k) accurately reflect

Congress’s intent to preserve all common law claims. The Safety

Act’s legislative history makes this clear. As the Supreme Court

of New Hampshire recognized, the original Senate version of the

Safety Act contained no saving clause, but both the Senate

committee report and Senator Warren Magnuson, the bill’s

sponsor, said that compliance with Federal standards "would not

necessarily shield any person from . . . liability at common law."

Pet. App. at 5a (quoting S. Rep. No. 1301, 89th Cong., 2d Sess.

12 (1966) and 112 Cong. Rec. 14230 (1966)). Senator Magnuson

added, "The common law on product liability still remains as it

was." Id.

This language was not good enough for the House of

Representatives, so it added section 1397(k) -- explicitly preserving

all common law claims. If the plain words of that section leave

any doubts as to Congress’s intent, they are surely resolved by the

House committee report. As the Supreme Court of . New (

Hampshire noted, the report says:

It is intended, and this subsection specifically

establishes, that compliance with safety standards

is not to be a defense or otherwise to affect the

14

SE Non ee a

rights of parties under common law particularly

those relating to warranty, contract, and tort

liability.

Pet. App. at Sa-6a; H.R. Rep. No. 1776, 89th Cong., 2d Sess. 24

(1966) (emphasis added).

What prompted the House of Representatives to insert

section 1397(k) and make Congress’s intent undeniably clear was

the following Congressional testimony of Tom Triplett of Chester,

South Carolina:

We need a traffic safety agency and we need to

research our problem from end to end, but we

don’t need to relieve the manufacturer of his

natural responsibility for the performance of his

product.

You may think that the manufacturer is afraid of

Government regulations but the cry you are

hearing may be "Brer Fox, please don’t throw me

in the briar patch." If the Government assumes

the responsibility of safety design in our vehicles,

the manufacturers will join together for another

30-year snooze under the veil of Government

sanction and in thousands of courtrooms across the

Nation wronged individuals will encounter the

stone wall of "Our product meets Government

standards," and an already compounded problem

will be recompounded.

Hearings Before the Committee on Interstate and Foreign

Commerce of the House of Representatives, 89th Cong., 2d Sess.

Part 2, 1249 (1966). Ironically, Mr. Triplett’s testimony was a

prescient summary of the actions of the auto manufacturers would

later take in regard to airbags. See, e.g., Motor Vehicle

Manufacturers Association v. State Farm Mutual Automobile

15

Insurance Co., 463 U.S. 29, 50 (1980) ("the automobile industry

waged the regulatory equivalent of war against the airbag”).

Congress responded to that testimony by expressly preserving all

common law claims.

Despite all of the foregoing, Ford contends that, even if

section 1397(k) does preclude a finding of express preemption, the

Supreme Court of New Hampshire erred in failing to find

plaintiff's common law claims impliedly preempted. Ford

advances four arguments why this is so, each of which can be

dismissed in short order.

First, Ford says that the Supreme Court of New Hampshire

"failed to recognize the doctrine of implied conflict preemption."

Pet. at 20. This is an odd assertion, since the decision below

explicitly says that, in the absence of express instruction from

Congress, "state law is pre-empted to the extent that it actually

conflicts with federal law." Pet. App. at 4a. The fact that the

decision below did not list all of the ways that state law can be

found to "actually conflict" with federal law is hardly significant.

The various types of "actual conflict” were fully briefed by the

parties, the pre-Cipollone decisions finding implied preemption on

"actual conflict” grounds were considered and rejected, and the

Supreme Court of New Hampshire ultimately concluded that, given

the clarity of Congress’s words, it could not properly find

plaintiff's common law claims impliedly preempted on "actual

conflict" or any other grounds. See Pet. App. at 6a.

Second, Ford says that the Supreme Court of New

Hampshire failed to recognize that Myrick "rejected the notion that

Cipollone had effectively prohibited implied preemption analysis

whenever an express preemption provision exists." Pet. at 22. In ,

fact, however, the New Hampshire Supreme Court applied Myrick |

properly. The Court acknowledged that the Safety Act contains an |

express preemption provision, but noted that, under Myrick, that

fact only “supports an inference” that implied preemption is

foreclosed and “does not establish a rule." Pet. App. at 4a. The

16

ST ne Tn

Court, therefore, reviewed both the language and the legislative

history of the Safety Act to determine whether, in Cipollone’s

words, they provided "a reliable indicium of congressional intent

with respect to state authority.” Pet. App. at 5a. Once it

concluded that they did, the Court followed Cipollone’s instruction

that "there is no need to infer congressional intent to pre-empt."

Id. at 6a. Ford’s true position, in contrast, is that a court may

consider implied preemption even where, as here, Congress’s

express words do provide a reliable indicium of congressional

intent with respect to preemption. That is not what Myrick says.

Indeed, this Court has repeatedly reaffirmed that, in determining

whether state law is preempted, its "sole task is to ascertain the

intent of Congress." California Federal Savings and Loan

Association v. Guerra, 479 U.S. 272, 280 (1987) ("California

Federal"). If Congress’s plainly expressed intent is to preserve,

rather than preempt, common law claims, then a court lacks

authority to second-guess that determination. Ford’s contrary

analysis turns preemption on its head, by claiming that a court can

find implied preemption even when Congress has unequivocally

directed "no." Myrick did not - and could not — so hold.

Third, Ford says that the Supreme Court of New

Hampshire erred because it failed to recognize "that federal

regulations can themselves effect implied conflict preemption."

Pet. at 25. This assertion is both legally and factually misguided.

As a legal matter, federal regulations cannot themselves effect

implied conflict preemption if Congress has said they cannot. It

is Congress’s intent - not the agency’s or the court’s — that is the

"ultimate touchstone of preemption analysis." Cipollone, 112 S.

Ct. at 2617. In the Safety Act, Congress explicitly said that the

agency’s regulations do not exempt any person from liability under

common law; neither the agency nor the courts are free to ignore

that legal instruction. As a factual matter, even when an agency

has the power to issue regulations that effect implied conflict

preemption, its regulations do not preempt state laws if there is no

conflict. That is the situation in this case. The version of

Standard 208 in effect when Ford manufactured the 1988 Ford

17

Escort driven by Rebecca Anne Tebbetts did not prohibit Ford

from manufacturing the car (or, for that matter, al) of its cars)

with a manual lap belt, a motorized shoulder harness, and a

driver’s-side airbag. It simply said that, at a minimum, Ford had

to equip at least 25 percent of its 1988 model-year cars with some

form of passive restraint. Even if a Federal motor vehicle safety

standard could impliedly preempt a state common law claim that

actually conflicts with it, Standard 208 would not impliedly

preempt the common law claim in this case.’

Fourth, having previously insisted that section 1397(k) is

not a saving clause, see Pet. at 16, Ford asserts that the Supreme

Court of New Hampshire erred because it failed to recognize the

rule that "saving clauses do not preclude implied conflict

preemption” and "preclude only implied field preemption.” Pet.

at 25-26. To be blunt, there is no such rule, nor should there be.

If Ford’s rule was the law, this Court would not have repeatedly

said that, in determining whether state law is preempted by federal

law, the courts’ "sole task is to ascertain the intent of Congress.”

California Federal, 479 U.S. at 280. Courts would be free to

ignore Congress’s intent, finding state law preempted whenever,

in the court’s view, it somehow "conflicted" with any aspect of

federal law. Even if Congress had explicitly said that state law

"Ford spends several pages quoting from the Secretary of

Transportation's 1984 explanation as to why she was promulgating a version of

Standard 208 that did not immediately require only airbags in all cars. See Pet.

at 4-6. The Secretary's lengthy explanation was not surprising — four years

earlier, in Motor Vehicle Manufacturers Association, 463 U.S. at 46-48, this

Court held that the agency’s decision to issue Standard 208 without discussing the

“airbags-only option" was “arbitrary and capricious." The explanation is,

however, irrelevant to the issues in this case. Congress did not purport to give

the Secretary of Transportation the power to preempt common law claims by

issuing Federal safety standards, the Secretary did not purport to preempt

common law claims in issuing Standard 208, and respondent does not challenge

Standard 208 or the Secretary’s decision to forego an “airbags-only” requirement.

Respondent does not even contend that the 1988 Ford Escort driven by Rebecca

Anne Tebbetts should have had an airbag only; she contends that the car should

have had an airbag in addition to its lap belt and shoulder harness.

18

was preserved, its intent would not matter; the courts and federal

agencies could displace state law on a free-roaming basis,

untethered by Congress’s words.

Such an outcome is, of course, the result Ford seeks in this

case because, here, Congress unequivocally preserved plaintiff's

common law claims. This Court has never, however, adopted

Ford’s unconstrained approach to implied conflict preemption. It

should not review this case in order to do so now.*

*Ford’s final assertion is that the decision below is the type of “no-

airbag” ruling that the United States has suggested should be reviewed by this

Court. See Pet. at 27. That assertion is incorrect. The Brief of the United

States as Amicus Curiae filed with this Court in Wood says, at 19, "[A]djudication

of this case could require the Court to pass on difficult issues that have not been

considered by the lower courts. One is . . . how vehicles should be treated if

they were manufactured during the three year phase-in period (1987-89) when

manufacturers had to install passive protection systems in only a percentage of

their new cars. To our knowledge, no federal or state appellate court has

considered any of these questions, and we believe it preferable that this Court not

be the first to do so.” As Ford accurately notes, Pet. at 27, the government then

concluded, “[W]e believe that the Court should stay its hand and see whether a

conflict on the preemption question hereafter develops among the federal courts

of appeal or the state courts of last resort." Respondent shares that belief today.

19

CONCLUSION

For the reasons stated above, the petition for a writ of

certiorari should be denied.

Respectfully submitted,

Edgar D. McKean, III Arthur H. Bryant

McKean, Mattson and (Counsel of Record)

Latici, P.A. Trial Lawyers for Public

Village West, P.O. Box 7386 Justice, P.C.

Gilford, NH 03247-7386 1717 Massachusetts Ave.,

(603) 524-4747 N.W., Suite 800

Washington, D.C. 20036

(202) 797-8600

Counsel for Respondent

December 4, 1995

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