# Opposition Brief — Ford Motor Co. v. Tebbetts

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1996
- **Citation:** 516 U.S. 1072

## Text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_0733%3A2. Public record. Not legal advice.