# Opposition Brief — Montag v. American Honda Motor Co.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1996
- **Citation:** 519 U.S. 814

## Text

PILED
cs JUL 19 $996

In THE
Supreme Court of the United States -

OCTOBER TERM, 1996

EsTATE of DIANE MoNnrTAG, by and through
MICHAEL MOonrTAG, the Personal Representative of the
Estate, and MICHAEL MONTAG, individually,

Petitioners,
v.

AMERICAN HONDA Motor CoMPANY, INC.,
HONDA MoTor ComPANy, LTD., a Japanese Corporation,
and HoNnDA R&D Co., LTD., a Japanese Corporation,

Respondents.

On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Tenth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

MALCOLM E. WHEELER *

ROBERT B. HUNTER

RICHARD P, BARKLEY

PARCEL, MAURO, HULTIN
& SPAANSTRA, F.C.

1801 California Street

Suite 3600

Denver, Colorado 802%z

(303) 292-6400

Attorneys for Respondents
American Honda Motor
Company, Inc., Honda Motor
Company, Ltd., and Honda
R&D Co., Ltd.

* Counsel of Record

WILSON - Erase Printing Co., Inc. - 769-0096 - WASHINGTON, D.C. 20001

QUESTION PRESENTED

Whether this Court should review a decision of the
United States Court of Appeals for the Tenth Circuit
holding that the National Traffic and Motor Vehicle
Safety Act of 1966 and Federal Motor Vehicle Safety
Standard 208 impliedly preempt state tort law claims
alleging that an automobile was defectively designed be-
cause it was not equipped with airbags and manual lap/
shoulder seat belts, even though (1) any opinion by this
Court would be merely advisory and would not affect the
outcome of the case; (2) procedural defects in Petitioners’
attempt to raise the “no-airbag” preemption issue on
appeal make this an unsuitable case in which to address
that issue in this Court; (3) the Tenth Circuit’s decision
is consistent with all decisions by other federal courts of
appeals addressing this issue; and (4) contrary to Peti-
tioners’ contention, the decision below does not conflict
with Congress’ intent as expressed in 15 U.S.C. section
1397(k).

(i)

ae

ii
RULE 29.6 LISTING

American Honda Motor Co., Inc.

Calhac, Inc.
American Honda Finance Corp.
American Honda Insurance Services, Inc.
American Honda Receivables Corp.
American Honda Service Contract Corporation
Honda Canada Finance, Inc.
Honda of America Mfg., Inc.
Benton Water Supply
Honda of America Foundation
Bellemar Parts Industries, Inc.
Honda Power Equipment Mfg., Inc.
American Honda Foundation
Honda Canada, Inc.
Honda De Mexico S.A. De C.V.
American Honda Education Corporation
Honda Performance Development, Inc.
Honda Trading America Corp.
Honda Trading Canada, Inc.
Harmony Agricultural Products, Inc.
Celina Aluminum Precision Technology

Honda Motor Co., Ltd.
Japan

Honda R&D Co., Ltd.
Honda Engineering Co., Ltd.
Hadsys, Inc.

Yutaka Giken Co., Ltd.
Honda Foundry Co., Ltd.
Asamagiken Co., Ltd.
Denshi Giken Co., Ltd.
Honda Lock Mfg., Co., Ltd.
Honda Access Sales Corp.
Honda Motor Parts Service Co., Ltd.
Honda Access Corp.

Honda Parts Sales Co., Ltd.
Honda Finance Co., Ltd.

iia,

ili

Suzuka Circuitland Co., Ltd.
Honda Trading Corporation
Honda Leasing Corporation

Honda Sogo Tatemono Co., Ltd.
Honda Verno Shin Tokyo Co., Ltd.
Honda Racing Corporation

North America

American Honda Motor Co., Inc.
Honda North America, Inc.

Honda of America Mfg., Inc.

American Honda Finance Corporation
Indiana Precision Technology, Inc.
Honda R&D North America, Inc.
Honda Trading America Corp.

Honda Engineering North America, Inc.
Honda Canada Inc.

Europe

Honda Austria G.im.b.H.

Honda Europe N.V.

Honda Belgium N.V.

Honda Motor Europe Limited

Honda of the U.K. Manufacturing Limited
Honda France S.A.

Honda Europe Power Equipment S.A.
Honda Deutschland G.m.b.H.

Honda R&D Europe (Deutschland) G.m.b.H.
Honda Nederland B.V.

Honda International Finance B.V.

Honda Italia Industriale-S.p.A.

Honda Automobili Italia S.p.A.

Honda Automovel de Portugal S.A.
Honda Motor de Portugal, S.A.

Honda Automoviles Espana, S.A.
Montesa Honda S.A.

Honda (Suisse) S.A.

iv
Rest of the World

P.T. Honda Prospect Engine Manufacturing
P.T. Honda Federal Inc.

Asian Honda Motor Co., Ltd.

Thai Honda Manufacturing Co., Ltd.
Honda Motor do Brasil Ltda.

Honda de Mexico, S.A. de C.V.

Honda Australia Pty., Ltd.

Honda New Zealand Limited

Honda R&D Co., Ltd.

Honda R&D Taiyo Co., Ltd.

Honda R&D North America, Inc.

Honda R&D Europe (Deutschland) G.m.b.H.
Honda R&D Europe (U.K.) Limited

TABLE OF CONTENTS

oe ys I SR Ee

SOR PREE SEU BP UU ieesclicibcorvbiicldasstecktecedescectesoncbesss

BAe CO RUNCORN: dcvcesectnicicinssstnsbescastsonlesenrtole

STATEMENT OF THE CASE .............. sahumialidrbangstorteabsict

REASONS FOR DENYING THE PETITION .

I.

II.

ITT.

IV.

THE PETITION SHOULD BE DENIED BE-
CAUSE THE DISTRICT COURT EXCLUDED
EVIDENCE OF PETITIONERS’ “NO-
AIRBAG” THEORY OF DEFECTIVE DESIGN
ON TWO GROUNDS, ONLY ONE OF WHICH
WAS APPEALED, AND A DECISION BY
THIS COURT ON THE PREEMPTION ISSUE
THEREFORE WOULD NOT CHANGE THE
OUTCOME OF THE CASE .00000000....0.00.0000cccc00s

THE PETITION SHOULD BE DENIED BE-
CAUSE IT DOES NOT SQUARELY PRESENT
THE “NO-AIRBAG” PREEMPTION ISSUE
AND WOULD REQUIRE THE COURT TO
DECIDE UNPRESERVED EVIDENTIARY
TUFTED cnebcnietunciipicospapecanipbcaidianhiet a lnc i rk Sa

CONTRARY TO PETITIONERS’ CONTEN-
TION, THE TENTH CIRCUIT’S DECISION
DOES NOT CONFLICT WITH ANY HOLDING
OF ANY OTHER CIRCUIT THAT HAS
RULED ON THE “NO-AIRBAG” PREEMP-
TRE, TED tencvcareemsicipintaranh aitehiinnielibasle ieesticens

CONTRARY TO PETITIONERS’ CONTEN-
TION, THE DECISION BELOW DOES NOT
CONFLICT WITH CONGRESS’ INTENT AS
EXPRESSED IN 15 U.S.C. SECTION 1397 (k)..

CONCLUSION ........ sheen <woilpalpephebnbovntbihinNledondiaadetioeinisathctile

12

24

vi

TABLE OF AUTHORITIES

CASES Page
Alabama State Fed’n of Labor v. McAdory, 325
Sl Ge Ce eka wechedidtcahinlateticscininiatiidantianeattn 6

Arbet v. Gussarson, 225 N.W. 2d 431 (Wis. 1975). 18
Ashwander v. Tennessee Valley Auth., 297 U.S. 288

(1936) ...... A SS ee Se ee 11
Burton v. United States, 196 U.S. 283 (1905). ie 12
Chicago & N.W. Transp. Co. v. Kalo Brick & Tile

Co., 450 U.S. 311 (1981) rau 22
Cipollone v. Liggett Group, Inc., 505. US. B04 |

2: RSI ehe LI BES SEIN IR Ne Pat Tie: 6, 16-17, 20 |
Cooper v. General Motors Corp., No. 92-CA-01334-

SCT, 1996 WL 272362 (Miss. May 23, 1996)..... 18

CSX Trans., Inc. v. Easterwood, 507 U.S. 658

$e 21
Dawson v. Chrysler Corp., 630 F.2d 950 (8d Cir.

1980) , cert. denied, 450 U.S. 959 (1981) .............. 18, 14
Dorsey v. Honda Motor Co., 655 F.2d 650 (5th Cir.

1981), modified, 670 F.2d 21, cert. denied, 459

toe 5, Se re 13
Doyle v. Volkswagenwerk Aktiengelelischaft, 81

F.3d 189 (11th Cir. 1996) ............ pest adn 14, 16, 17
Fox v. Ford Motor Co., 575 F.2d 774 (10th Cir.

1978) ....... sicnapeanieniesoietiaaiteesdanstadtndiniateieanttaaiaaeieeaaiaaaetsiied 13, 14
Freightliner Corp. v. Myrick, —— US. ——, 115

S. Ct. 1483 (1995) . ORE, SER. 6, 15, 16, 17
General Motors Corp. v. ‘Edwards, 482 So. 2d 1176

(Ala. 1985) . fe Deere Sta EL - 13
Harmon v. Brucker, 855 U.S. 579 (1958) ............... 11
Harris v. Ford Motor Co., No. 94-56527 (9th Cir.) .. 12
Hayburn’s Case, 2 U.S. (2 Dall.) 408 (1792) ........ 6

Hernandez-Gomez v. Volkswagen of America, Inc.,
884 P.2d 183 (Ariz. 1994), vacated and re-
manded, , 115 S. Ct. 1819 (1995)... 17

Hernadez-Gomez v. Leonardo, 917 P.2d 233 (Ariz.
ERRATA BES SABER ok BET ne Fas HE 17, 18

H.P. Hood & Sons, Ine. v. Ford Motor Co., 845
N.E.2d 683 (Mass. 1976) ............-...ccc0cceeeeeceeeee head 13

Vii

TABLE OF AUTHORITIES—Continued

Page
Honda Motor Co. v. Kimbrel, 189 Ga. App. 414, 376
I 16, 17
International Paper Co. v. Ouellette, 479 U.S. 481
8 hace NS Pa Se 22
John Hancock Mut. Life Ins. Co. v. Harris Trust
@ Sav. Bank, —— US. ——, 114 S. Ct. 517
(1998) .......... SE Se NE IM ae RD ny 20

Kitts v. General Motors Corp., 875 F.2d 787 (10th
Cir. 1989), cert. denied, 494 U.S. 1065 (1990) .__.5-6, 12,

14,17
Knippen v. Ford Motor Co., 546 F.2d 998 (D.C.

Cir. 1976) ........... CS See ale a ee ee 13
Larsen v. General Motors Corp., 301 F.2d 495 (8th

Cir. 1968) . , 13
Loulos v. Ford Motor Co., 882 S.W.2d 149 (Mo.

pS ASE eee eee 18
Montag v. Honda Motor Co., 15 F.3d 1414 (10th

Cir. 1996) ....... a Se. ee 5,14
Morales v. Trans World Airlines, Inc., 504 U.S. 374

(1992) ... 20
Myrick v. Freuhauf Corp., 18 F.3d 1516 (11th Cir.

1994), aff'd sub nom. on other grounds, Freight-

liner Corp. v. Myrick, US. , 115 S. Ct.

Se I icin niatenieita disteeenindat Mata hedges Badd 14
Nagle v. Alspach, 8 F.3d 141 (3d Cir. 1998) ....... x
Nissan Motor Corp. in U.S.A. v. Superior Court,

212 Cal. App. 3d 980, 261 Cal. Rptr. 80 (1989),

cert, denied, 494 U.S. 1066 (1990) 0. 12
North Carolina v. Rice, 404 U.S. 244 (1971) 6
Pokorny v. Ford Motor Co., 902 F.2d 1116 (8rd

Cir.), cert. denied, 498 U.S. 853 (1990) .......12, 14,17
Pennsylvania R.R. v. Puritan Coal Mining Co., 237

U.S. 121 (1915) .. ; 22
Schwartz v. American Honda Motor Co., 710 F. 2d

378 (7th Cir. 1983) ......... 13
Shipp v. General Motors Corp., 150 F2d 418 (5th

Cir 1985) ........... 13

Sours v. General Motors Corp. 717 F.2d 1511 (6th
SR I arligent eeti S eee 13

viii
TABLE OF AUTHORITIES—Continued

Page

Stonehocker v. General Motors Corp., 587 F.2d 151
OR OR FRR a RS Ee 13

Taylor v. General Motors Corp., 875 F.2d 816 (11th
Cir. 1989), cert. denied, 494 U.S. 1065 (1990) .... 12, 14,
16, 17

Tebbetts v. Ford Motor Co., 665 A.2d 345 (N.H.

1995), cert. denied, —— U.S. ——, 116 S. Ct. 773

9 ee ie we cere he Tw Oe 12,18
Texas & Pac. Ry. v. Abilene Cotton Oil Co., 204

U.S. 426 (1907) ..... Ie rai PEL RSE 22
T.1.M.E. Inc. v. United States, 359 U.S. 464

pe aM RE Ate a SIS | PETS A 22
United States v. Hastings, 296 U.S. 188 (1985)........ 6, 7,8
Volkswagen of Am., Inc. v. Young, 321 A.2d 737

Ee Cs A 18

Wickstrom v. Maplewood Toyota, Inc., 416 N. W. 2d

838 (Minn. App. 1987), cert. denied, 487 U.S.

eR ile SET Ar al Ek Lad RR Bd SN 12
Wilson v. Pleasant, 660 N.E. 2d 327 (Ind. 1995)...... 18
Wood v. General Motors Corp., 865 F.2d 395 (1st

Cir. 1988), cert. denied, 494 U.S. 1065 (1990) ..12, 17, 19

CONSTITUTIONAL PROVISIONS, STATUTES,

AND RULES

15 U.S.C. § 1892 (d) ........ ssiieaiianeamacieate eae an 19, 20, 21
pk ER Ls, RE abc mona 19, 20, 21, 22, 23
pO Eee ae ee 21
y pi tie Fo Te |} ee ae en a 20
Fs I hele dcctitabacdeerecacniccttdabnnsinsiihiibisceccacibbes 20
Pope A RE Fy) Renee ie ee 9
Me Bi cet hlisbsennsittatecesbheelhennthcdiclsaecahnitniipeaiiiias 8
I a ea ee 10, 11
Rule 10(a) of the Supreme Court of the United

RE I Sy SC tab he | 18

OTHER AUTHORITIES

S. Rep. No. 1301, 89th Cong., 2d Sess. (1966),
reprinted in 1966 U.S.C.C.A.N. 2709 .................... 23

Brief for the United States as Amicus Curiae Sup.-
porting Respondents, Freightliner Corp. v.
Myrick, No. 94-286 (U.S. 1994) ......................... 15

ix

TABLE OF AUTHORITIES—Continued
Page

Brief of the United States as Amicus Curiae,

Ritt v. General Motors Corp., No. 88-1822 (7th

I i o csieeaaniion 15
Brief for United States as Amicus Curiae, Wood

v. General Motors Corp., No. 89-46 (U.S. 1990).. 15

iia a

In THE
Suprene Court of the United States
OCTOBER TERM, 1996

No. 95-1885

EsTATE of DIANE MonrTaAG, by and through
MICHAEL MONTAG, the Personal Representative of the
Estate, and MICHAEL MONTAG, individually,

Petitioners,

—— EE

Vv.

| AMERICAN HONDA MoToR CoMPANY, INC.,
HONDA Motor ComPany, LTD., a Japanese Corporation,
and HONDA R&D Co., LTD., a Japanese Corporation,
Respondents.

On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Tenth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

STATEMENT OF THE CASE

On June 22, 1990, Diane Montag ran a stop sign in
Westminster, Colorado, and drove her 1988 Honda
Prelude into the path of a Burlington Northern freight
train. The train, consisting of six locomotives and 77
cars, weighing approximately 14 million pounds, and
travelling at a speed of 34 miles per hour, plowed directly
into the driver’s door of the Prelude.’ On March 30,

1 Petitioners state that the train “hit the left rear wheel of the
1988 Honda Prelude that Diane Mcntag was driving.” (Pet. at 4.)
Although that is correct as far as it goes, it is akin to saying that

2

1992, Ms. Montag died from the injuries she incurred in
the crash.

Petitioners subsequently brought this product liability
action. Their complaint, and later their amended com-
plaint, alleged that the Prelude’s door-latch system was
defective and that the Prelude’s restraint system “would
not function properly when the door opened.” Neither
the complaint nor the amended complaint alleged that
the Prelude was defective because it was equipped with
an automatic lap/shoulder seat belt system rather than
with a manual lap/shoulder seat belt and an airbag.

On May 28, 1992, the district court held a scheduling
and status conference. As the court minutes of that con-
ference reflect, the court ordered the parties to identify
all expert witnesses, and to produce “detailed reports” of
the experts’ opinions, no later than December 1, 1992.
The court also ordered that expert testimony at trial
would be “limited to [the] extent of [the] report” and
that discovery would close on March 1, 1994.

On January 7, 1993, Akio Takaoka, a witness retained
by Petitioners to testify about purported defects in the
design of the 1988 Prelude, submitted an expert report
stating his opinions about the two defects alleged in the
amended complaint. Neither he nor any other expert
opined that the Prelude should have been equipped with
a manual lap/shoulder seat belt and an airbag, rather
than with the automatic lap/shoulder seat belt system
actually installed.

Respondents took Takaoka’s deposition on March 1,
1994, the last day for discovery. During his deposition,
Takaoka attempted to interject a new theory of liability
into the case when, for the first time, he disclosed that

the iceberg which struck the Titanic damaged stateroom 104 of the
ship. In truth, the uncontradicted record shows that the train
demolished the entire driver’s side of the Prelude.

3

he intended to express the opinion that the Prelude was
defective because it was not equipped with a manual lap/
shoulder seat belt and an airbag.

On May 10, 1994, Respondents filed a motion in limine
to exclude testimony by Takaoka “that the 1988 Prelude
was defective because Honda could have, but did not,
equip the 1988 Preclude with an airbag restraint system.”
Specifically, the motion sought to exclude

all evidence of and references to airbag restraint
systems, including: (1) that airbag restraint systems
were feasible, practical, or available in other 1988
model-year vehicles, (2) that Diane Montag’s in-
juries would have been reduced or prevented if the
1988 Honda Prelude had been equipped with an
airbag restraint system, and (3) that the 1988
Prelude is defective or unsafe because it was not
equipped with an airbag restraint system.

(Pet. at 2a.) Respondents argued that such evidence was
inadmissible because it (1) would “convert [ Petitioners’ ]
heretofore ordinary defect claim into a ‘no-airbag’ claim
preempted by Federal statutes and safety regulations”
and (2) would violate the court’s order limiting experts’
opinions to those expressed in their expert reports.

In opposing the motion in limine, Petitioners argued
that their claim was not a “no-airbag” claim, but a claim
that the Prelude should have been equipped with a manual
lap/shoulder seat belt. They stated: ;

In the context of this case, it is not the airbag that
is important to Plaintiffs’ design claims. The impor-
tance of the airbag is that it permits the designer /
manufacturer to use a manual safety belt which
would provide pelvic restraint in the event a door
opens during an accident.”

*In fact, however, an airbag was not needed in 1988 model-year
vehicles to “permit” the installation of manual seat belts; rather,
Federal Motor Vehicle Safety Standard 208 at that time gave each
manufacturer the choice of installing either manual seat belts or

4

Petitioners contended that the Safety Act and Safety
Standard 208 did not “preempt design defect claims,”
such as theirs, “involving manual safety belts with air-
bags.”

On June 9, 1994, the district court granted Respondents’
motion in limine. The court observed that “this is not a
‘no-airbag’ case” and that Petitioners were attempting to
bring a “no-airbag” claim through the back door by hav-
ing Takaoka testify as to a “no-airbag theory of defective
design ....” (Pet. at 3a.) The court then held the
back-door “no-airbag” defect theory preempted. (Jd. at
8a.)

The court also held Takaoka’s testimony on Petitioners’
“no-airbag” theory inadmissible for the independent rea-
son that Petitioners had failed to timely raise it. The
court stated:

An additional reason for precluding the Plaintiffs
from attempting to show that this 1988 Honda
Prelude was defective because it was not equipped
with an airbag restraint system is that this defect
theory was not expressed by Plaintiffs’ experts in
their expert reports at the time of endorsement or
at any time before the discovery cutoff. Not until
the March 1, 1994 deposition of Mr. Takaoka did
the Plaintiffs in any way introduce their theory that
this 1988 Honda Prelude was defective because it
was not equipped with an airbag restraint system.
On October 22, 1993, at the Plaintiffs’ request, the |
discovery cutoff was extended to March 1, 1994. /n
keeping with the court's requirements regarding en-
dorsement of expert witnesses, expert reports, and
discovery cutoffs, the Plaintiffs should be prohibited
from introducing evidence that this 1988 Honda
Prelude was defective because it was not equipped
with an airbag restraint system.

(Id. at 9a (emphasis added ).)

passive restraints, such as airbags, in up to 75 percent of the
manufacturer’s vehicles. See p. 9 & n.5, infra.

5

At trial, Petitioners did not adduce, make an offer of
proof on, or otherwise identify, any evidence about an
airbag and manual seat belt restraint system. After
trial, the jury found that Respondents were not liable to
Petitioners and that Diane Montag’s conduct was the sole
cause of her accident.®

Petitioners appealed to the United States Court of
Appeals for the Tenth Circuit. In their opening brief they
identified nine issues on appeal. The only issue that dealt
with evidence about airbags stated: “Did the trial court
err by concluding that express pre-emption precluded in-
troduction of the airbag/manual belt system as a safer
design alternative.” Petitioners did not appeal the district
court’s ruling that evidence on their “no-airbag” theory
was inadmissible because they had failed to comply with
the court’s scheduling order.

In their opening brief Petitioners also ignored the facts
that their expert witness had stated in deposition that he
intended to testify that the Prelude was defective because
it was not equipped with a restraint system using an air-
bag and manual lap/shoulder seat belt, and that Re-
spondents’ motion in limine was directed to that proposed
testimony. Instead, Petitioners for the first time asserted
that they had not intended to present evidence about a
restraint system using airbags and manual lap/shoulder
seat belts through their own experts; rather, they said,
they at all times had planned to introduce evidence of
tl.is alternative design through Respondents’ employees.

On January 22, 1996, the court of appeals affirmed
the judgment of the district court. Montag v. Honda
Motor Co., 75 F.3d 1414 (10th Cir. 1996). After
noting that it had previously held “no-airbag” claims
impliedly preempted in Kitts v. General Motors Corp.,
875 F.2d 787 (10th Cir. 1989), cert. denied, 494 U.S.

* Contrary to Petitioners’ representation to this Court (see Pet.
at 7), the jury did not “specifically [find] that Mrs. Montag’s
injuries were caused by her ejection from her vehicle.”

6

1065 (1990), the court examined this Court’s subsequent
decisions in Cipollone v. Liggett Group, Inc., 505 U.S.
504 (1992), and Freightliner Corp*v. Myrick, US.
, 115 S. Ct. 1483 (1995), to determine whether they
mandated a different result.* See 75 F.3d at 1417. The
court of appeals held they did not, stating: “[OJjur hold-
ing in Kitts still applies to this case. Plaintiffs were im-
pliedly preempted from presenting airbag evidence.” /d.

REASONS FOR DENYING THE PETITION

I. THE PETITION SHOULD BE DENIED BECAUSE
THE DISTRICT COURT EXCLUDED EVIDENCE
OF PETITIONERS’ “NO-AIRBAG” THEORY OF
DEFECTIVE DESIGN ON TWO GROUNDS, ONLY
ONE OF WHICH WAS APPEALED, AND A DECI-
SION BY THIS COURT ON THE PREEMPTION
ISSUE THEREFORE WOULD NOT CHANGE THE
OUTCOME OF THE CASE

For more than 200 years, this Court has held that it
“is without power to give advisory opinions.” E.g., Ala-
bama State Fed’n of Labor v. McAdory, 325 U.S. 450,
461 (1945) (quoting Hayburn’s Case, 2 U.S. (2 Dall.)
408 (1792); North Carolina v. Rice, 404 U.S. 244,
246 (1971) (Court has “frequently repeated that fed-
eral courts are without power to decide questions that
cannot affect the rights of litigants in the case before
them”). In United States v. Hastings, 296 U.S. 188
(1935), this Court specifically held that it should not
review a federal district court’s decision based on two
independent grounds, one of which had not been pre-
sented for review:

A distinct question is presented where the District
Court has not placed its decision solely upon the

* As the court of appeals’ opinion shows on its face, Petitioners’
assertion that the “Tenth Circuit did not analyze the effects of the
holdings of’ Cipollone and Myrick “on its previous decision in
Kitts’ is incorrect. (See Pet. at 7.)

7

invalidity or construction of the statute, but has also
sustained the demurrer or granted the motion to
quash the indictment upon wholly independent
grounds of insufficiency. In such a case the judgment
of the District Court would remain in effect and the
defendant would go free of the indictment, whatever
views we might express upon appeal as to the con-
struction or validity of the statute. We could not
reverse the judgment upon questions not before us.
An indictment not merely attacked, but found to be
invalid on grounds not open here, would be made
the vehicle of an effort to obtain from this Court an
expression of an abstract opinion, which might or
might not fit a subsequent prosecution of the same
defendant or others, but would not determine the
instant case. Review of a judgment which we cannot
disturb, because it rests adequately upon a basis not
subject to our examination, would be an anomaly.
ae ok F oe

If the judgment is independently based, and in that
respect is not open to correction or reversal, we are
of the opinion that this Court should not entertain
the . . . appeal.

Id. at 193-94.

The same principle applies here. Here, the district
court excluded evidence of Petitioners’ “no-airbag” theory
on two independent grounds: (1) Petitioners asserted a
back-door “no-airbag” claim that was preempted, and (2)
Petitioners’ belated attempt to introduce a new design
defect claim violated the court’s scheduling order. (Pet.
at 3a.) Petitioners did not appeal the court’s second,
independent ground for excluding “no-airbag” evidence.

In their opening brief, and in their docketing statement,
in the Tenth Circuit, Petitioners identified nine issues on
appeal, only one of which dealt with evidence about air-
bags. That appeal issue stated: “Did the trial court err
by concluding that express pre-emption precluded intro-

8

duction of the airbag/manual belt system as a safer
design alternative.” Petitioners did not identify as an
appeal issue the district court’s ruling that evidence with
respect to Petitioners’ “no-airbag” theory was inadmissible
because they had failed to comply with the court’s pre-
trial order. Furthermore, no mention of, or argument on,
that issue appeared in Petitioners’ opening brief. Accord-
ingly, Petitioners waived the issue, and it was not before
the court of appeals. See, e.g., Fed. R. App. P.
28(a)(3), (5); Nagle v. Alspach, 8 F.3d 141, 143 (3d
Cir. 1993) (“When an issue is either not set forth in the
statement of issues presented or not pursued in the argu-
ment section of the brief, the appellant has abandoned
and waived that issue on appeal.”).

As a result, in this case, as in Hastings, any opinion by
this Court on the preemption issue would be an advisory
opinion. Whatever views the Court might express on that
issue, the judgment of the district court would remain in
effect. Accordingly, the rulé articulated in Hastings ap-
plies here: Because the ruling below is “independently
based” on a ground that has not been appealed “and in
that respect is not open to correction or reversal,” this
Court “should not entertain the appeal.”

Il. THE PETITION SHOULD BE DENIED BECAUSE
IT DOES NOT SQUARELY PRESENT THE “NO-
AIRBAG” PREEMPTION ISSUE AND WOULD RE-
QUIRE THE COURT TO DECIDE UNPRESERVED
EVIDENTIARY ISSUES

This case is inappropriate for review for the further
reason that it neither squarely nor cleanly presents the
issue stated in the petition—namely, whether “no-airbag”
claims are preempted. Petitioners concede that they did
not even “contend that an airbag would have made a
difference in this case.” (Pet. at 6.) Rather, Petitioners
contended that if the Prelude had been equipped with a
manual lap/shoulder seat belt system mounted to the

9

body of the car, rather than an automatic lap/shoulder
seat belt system with one end mounted to the door,
“Diane Montag would not have been ejected from the
vehicle and would not have sustained the injuries which
ultimately led to her death.” (Pet. at 4.) Therefore, as
the district court noted, Petitioners agreed with the court
that “this is not an airbag case.”

In addition, although Petitioners suggest that the district
court’s ruling prevented them from attempting “to prove
that there were safer, economical alternatives to the auto-
matic safety belt system selected and designed by Honda”
(Pet. at 6), the truth is that their response to the motion
in limine to exclude “no-airbag” evidence identified no
fewer than three alternative designs that they claimed
were safer than the restraint system in the 1988 Honda
Prelude and that did not include airbags. In particular,
the district court’s ruling did not prevent Petitioners
from arguing that Respondents should have installed
body-mounted manual lap/shoulder seat belts, rather
than automatic lap/shoulder seat belts, in the 1988
Prelude. No mention of airbags was needed in order to
make that argument because, as Petitioners concede, an
airbag would have done nothing to prevent the ejection
of Ms. Montag in what was a pure side-impact collision.*

Understandably, under these circumstances, the district
court found that “[e]ven without their no-airbag theory,
the Plaintiffs have viable theories of design defect and
evidence of safer feasible alternatives.” (/d. at 4a.) In
short, evidence about airbags, whether used with auto-
matic lap/shoulder seat belts or with manual lap/shoulder
seat belts, was 100 percent irrelevant to Petitioners’ side-

5 Because the Prelude in question was a 1988 model-year vehicle,
Federal Motor Vehicle Safety Standard 208 permitted manual! lap/
shouder seat belts, as opposed to automatic seat belts or
airbags, in up to 75 percent of each manufacturer’s automobiles.
See 49 C.F.R. § 571.208 (1988).

10

impact ejection claim. Such evidence would have done
nothing to enhance Petitioners’ arguments that manual
seat belts were preferable to automatic seat belts. Accord-
ingly, this case presents nothing more than an unexcep-
tional challenge to a trial court’s exclusion of evidence,
and Petitioners do not present any compelling reason for
granting the petition.

Moreover, the petition presents an unpreserved chal-
lenge to the district court’s exclusion of evidence. See Fed.
R. Evid. 103. In their petition, Petitioners assert that the
district court’s ruling precluded them from introducing into
evidence documents written by, and the deposition testi-
mony of, Ksazou Higuchi and Noboru Hashimoto, two
witnesses who testified on behalf of Honda. But Peti-
tioners never offered those materials into evidence or even
identified them to the district court, either in response
to the motion in limine or at trial.

As discussed above (see supra pp. 2-4), Respond-
ents filed their motion in limine to exclude testimony by
Petitioners’ expert Akio Takaoka that they could have
equipped the 1988 Prelude with a restraint system con-
sisting of an airbag and a manual lap/shoulder seat
belt and that the Prelude was defective because it was
not so equipped. In opposing that motion, Petitioners did
not contest Respondents’ description of Takaoka’s in-
tended testimony, and Petitioners made no offer of proof
about, or otherwise identified, any evidence other than
Takaoka’s testimony that would be prohibited by the
motion. Because of Respondents’ silence, therefore, the
district court had no knowledge of evidence other than
Takaoka’s testimony that was excluded by its ruling. See
Pet. at 2a (“Defendants ask the court to exclude all evi-
dence of and references to airbag restraint systems... .
The Defendants believe that the Plaintiffs intend to in-
troduce such evidence through their expert witness, Akio
Takaoka.” ).

11

Petitioners followed the same course at trial, making
no attempt to introduce, and no offer of proof regarding,
any evidence about restraint systems with airbags and man-
ual lap/shoulder seat belts, including the documents and
deposition testimony they now claim were improperly ex-
cluded. Specifically, although the district court’s order only
prohibited Petitioners “from introducing evidence that
this 1988 Honda Prelude was defective because it was
not equipped with an airbag restraint system” (Pet. at
9a), and although Petitioners now contend that the
evidence they intended to introduce would not have been
directed to that issue, Petitioners (1) did not make an
offer of proof of, or otherwise identify, such evidence to
the district court; (2) did not argue that such evidence was
admissible and necessary to rebut Respondents’ testimony
or to impeach or otherwise cross-examine Respondents’
witnesses; (3) did not argue that such evidence was ad-
missible and necessary because Respondents had opened
the door to the issue; and (4) did not ask the court to
reconsider the order in limine or to clarify its scope.

In short, Petitioners did nothing to identify the docu-
ments and deposition testimony to the district court, did
nothing to introduce the documents and deposition testi-
mony at trial, and did nothing to have the district court
rule on the admissibility of the documents and deposition
testimony. Accordingly, Petitioners failed to preserve the
issue for appellate review. See Fed. R. Evid. 103 (a)(2).

These circumstances militate against granting the peti-
tion. This Court has often stated that when a case can
be decided on both non-constitutional and constitutional
grounds, the Court should not decide the constitutional
question. See, e.g., Harmon v. Brucker, 355 U.S. 579,
581 (1958) (recognizing “duty to avoid deciding consti-
tutional questions presented unless essential to proper
disposition of a case”); Ashwander v. Tennessee Valley
Auth., 297 U.S. 288, 347 (1936) (Brandeis, J., concur-
ring) (“‘It is not the habit of the Court to decide ques-

12

tions of a constitutional nature unless absolutely neces-
sary to a decision of the case.’”) (quoting Burton vy.
United States, 196 U.S. 283, 295 (1905)).

Finally, the true “no-airbag” preemption issue is cur-
rently pending in several appellate courts in cases that
present that issue squarely, without the evidentiary and
procedural complexities and imperfections that exist here.
See, e.g., Harris v. Ford Motor Co., No. 94-56527 (9th
Cir.) (petition for interlocutory review granted on Novem-
ber 7, 1994; oral argument held on April 9, 1996). Be-
cause it is likely that the losing party in one or more of
those cases will petition this Court for a writ of cer-
tiorari,’ the Court will most assuredly have the opportu-
nity to address the “no-airbag” preemption issue in an
appropriate case in the near future. The Court should
wait for such a case in which to address that issue.

Ill. CONTRARY TO PETITIONERS’ CONTENTION,
THE TENTH CIRCUIT'S DECISION DOES NOT
CONFLICT WITH ANY HOLDING OF ANY OTHER
CIRCUIT THAT HAS RULED ON THE “NO-
AIRBAG” PREEMPTION ISSUE

Petitioners contend, incorrectly, that the court of ap-
peals’ decision in this case “directly conflicts with the

*This is at least the eighth time in the last seven years in
which a litigant has sought review of the “no-airbag” preemption
issue by this Court. See, e.g., Pokorny v. Ford Motor Co., 902 F.2d
1116 (3rd Cir.), cert. denied, 498 U.S. 853 (1990) ; Wood v. General
Motors Corp., 865 F.2d 395 (1st Cir. 1988), cert. denied, 494 U.S.
1065 (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 787 (10th Cir. 1989), cert. denied, 494 U.S.
1065 (1990); Nissan Motor Corp. in U.S.A. v. Superior Court, 212
Cal. App. 3d 980, 261 Cal. Rptr. 80 (1989), cert. denied, 494 U.S.
1066 (1990) ; Wickstrom v. Maplewood Toyota, Inc., 416 N.W.2d 838
(Minn. App. 1987), cert. denied, 487 U.S. 1236 (1988). Indeed,
only six months ago this Court denied a petition for a writ of
certiorari in a case that squarely and clearly presented that issue
and no other. See Tebbetts v. Ford Motor Co., 665 A.2d 345 (N.H.
1995), cert. denied, USS. , 116 S. Ct. 773 (1996).

13

decisions of numerous Federal circuits and state courts
of last resort.” (Pet. at 8 & n.3.) In truth, none of the
federal court of appeals decisions cited by Petitioners
addresses the “no-airbag” preemption issue at all; nor do
five of the cited decisions by state courts of last resort.
In ten of the cited cases, preemption was not in issue and
the word “preemption” does not appear even once in the
courts’ opinions.’ One of the other cases addresses only
the doctrine of field preemption, which is not at issue in
“no-airbag” preemption cases.° Ten of the cases merely
confirm that compliance with Federal Motor Vehicle
Safety Standards does not constitute a defense to a prod-
uct liability action if none of those standards governs
the specific design feature alleged by a plaintiff to be
defective.’ Indeed, six of the cases involved allegations of
defects in vehicles designed and manufactured before any
pertinent federal Safety Standard had been promulgated.”

Moreover, 15 of the cases involved vehicle features
other than airbags, and in two instances the same courts

7 See Knippen v. Ford Motor Co., 546 F.2d 99% (D.C. Cir. 1976) ;
Dawson v. Chrysler Corp., 630 F.2d 950 (3d Cir. 1980), cert.
denied, 450 U.S. 959 (1981) ; Stonehocker v. General Motors Corp.,
587 F.2d 151 (4th Cir. 1978) ; Shipp v. General Motors Corp., 750
F.2d 418 (5th Cir. 1985) ; Sours v. General Motors Corp., 717 F.2d
1511 (6th Cir. 1983); Schwartz v. American Hu..da Motor Co.,
710 F.2d 378 (7th Cir. 1983) ; Larsen v. General Motors Corp., 391
F.2d 495 (8th Cir. 1968); Fox v. Ford Motor Co., 575 F.2d 774
(10th Cir. 1978) ; Volkswagen of Am., Inc. v. Young, 321 A.2d 737
(Md. App. 1974); H.P. Hood & Sons, Inc. v. Ford Motor Co., 345
N.E.2d 683 (Mass. 1976).

8 See Arbet v. Gussarson, 225 N.W.2d 431 (Wis. 1975).

® See Knippen, supra; Dawson, supra; Stonehocker, supra; Dorsey
v. Honda Motor Co., 655 F.2d 650 (5th Cir. 1981), modified, 670
F.2d 21, cert. denied, 459 U.S. 880 (1982); Shipp, supra; Schwartz,
supra; Larsen, supra; General Motors Corp. v. Edwards, 482 So. 2d
1176 (Ala. 1985); Young, supra; Arbet, supra.

10 See Knippen, supra; Stonehocker, supra; Sours, supra;
Schwartz, supra; Larsen, supra; Arbet, supra.

s FS ee

i4

later held “no-airbag” claims preempted."’ As the Third
Circuit stated in Pokorny v. Ford Motor Co., 902 F.2d
1116 (3d Cir.), cert. denied, 498 U.S. 853 (1990), dis-
tinguishing its earlier decision in Dawson v. Chrysler
Corp., 630 F.2d 950 (3d Cir. 1980), cert. denied, 450
U.S. 959 (1981):

[D]espite [plaintiff's] arguments to the contrary, our
decision in Dawson does not prohibit us from hold-
ing that [plaintiff's] common law action is impliedly
pre-empted by the Safety Act and Safety Standard
208. . . . [Dawson] did not involve pre-emption. . . .
There was no federal standard governing the par-
ticular design said to be defective in Dawson, and
thus there was no asserted conflict between federal
standards and common law liability.

Pokorny, 902 F.2d at 1122.

Petitioners similarly err in contending that the Tenth
Circuit’s holding in this case places it in conflict with the
Eleventh Circuit. In the only “no-airbag” preemption case
ever decided by the Eleventh Circuit, that court held “no-
airbag” claims preempted. Taylor v. General Motors Corp.,
875 F.2d 816 (11th Cir. 1989), cert. denied, 494 US.
1065 (1990). Petitioners argue (Pet. at 11-12) that the
Eleventh Circuit reversed course in Myrick v. Freuhauf
Corp., 13 F.3d 1516 (11th Cir. 1994), aff'd sub nom. on
other grounds, Freightliner Corp. v. Myrick, supra, and
“reaffirmed” that reversed course in Doyle v. Volkswagen-
werk Aktiengelellschaft, 81 F.3d 139 (11th Cir. 1996),
but that argument is flawed in several respects.

11 Compare, e.g., Pokorny v. Ford Motor Co., 902 F.2d 1116 (3d
Cir.), cert. denied, 498 U.S. 853 (1990) (“no-airbag” claims pre-
empted), with Dawson v. Chrysler Corp., 630 F.2d 950 (3d Cir.
1980), cert. denied, 450 U.S. 959 (1981) (compliance with federal
safety standards was not complete defense to claim that vehicle
was defective because of noncontinuous body frame); Montag v.
Honda Motor Co., 75 F.8d 1414 (10th Cir. 1996) (“no-airbag”’
claims preempted), and Kitts v. General Motors Corp., 875 F.2d
787 (10th Cir. 1989), cert. denied, 494 U.S. 1065 (1990) (same),
with Fox v. Ford Motor Co., 575 F.2d 774 (10th Cir. 1978)

15

First, Myrick involved antilock brakes in trucks, not
airbags in cars, and the preemptive effect of Federal
Motor Vehicle Safety Standard 208 was neither before
the Eleventh Circuit nor discussed by it. That is of no
minor moment, because the difference between truck anti-
lock brakes and Federal Motor Vehicle Safety Standard
121, on the one hand, and airbags and Federal Motor
Vehicle Safety Standard 208, on the other, is consider-
able. Most importantly, whereas the Department of
Transportation and the Department of Justice explcitly
stated that claims based on the absence of truck antilock
brakes were not intended to be preempted by Safety
Standard 121, the same agencies have three times ex-
plicitly stated that “no-airbag” claims were intended to be
preempted by Safety Standard 208. Compare Brief for
the United States as Amicus Curiae at 29-30, Freightliner
Corp. v. Myrick, No. 94-286 (U.S. Dec. 1994) (truck
antilock brake claims not preempted by Safety Standard
121), with id. at 28-29 (“no-airbag” claims preempted
by Safety Standard 208); Brief for United States as
Amicus Curiae at 13-14, Wood v. General Motors Corp.,
494 U.S. 1065 (1990) (No. 89-46) (same); Brief of the
United States as Amicus Curiae at 32-35, Ritt v. General
Motors Corp., No. 88-1822 (7th Cir. 1989) (same).

Second, although it affirmed the Eleventh Circuit’s judg-
ment regarding antilock brakes in Myrick, this Court did
so because there was “simpiy no federal standard for a
private party to comply with. Nething in the Safety Act
or its regulations currently regulates the use of [antilock
brake] devices. . . . In the absence of a promulgated
safety standard, the Act simply fails to address the need
for [antilock brakes] at all.” U.S. at mer ee
S. Ct. at 1488. This Court flatly rejected as “without
merit” the portion of the Eleventh Circuit’s opinion hold-
ing that, because of this Court’s decision in Cipollone,

(compliance with federal safety standards was not complete defense
to claim that rear-seat lap safety belt was defectively designed).

eT

16

“implied preemption cannot exist where Congress has
chosen to include an express pre-emption clause in a
statute.” U.S. at , 115 S. Ct. at 1487. Because
it was only that erroneous portion of the Eleventh Cir- |
cuit’s Myrick opinion which could be said to support a
broad conclusion that no common law claim of any kind
could be impliedly preempted by any Federal Motor Ve-
hicle Safety Standard, and because thig Court held that
portion of the opinion to be erroneous, the Eleventh Cir-
cuit’s Myrick opinion holding truck antilock brake claims
not preempted cannot now credibly be said to have over-
ruled the same court’s Taylor opinion holding “no-airbag”
claims preempted.

Third, although Petitioners argue that the Eleventh
Circuit in Doyle “reaffirmed” its holding in Myrick and
thereby somehow found “no-airbag” claims not preempted,
it did no such thing. The claimed design defect in Doyle
was not an absence of airbags, but “the absence of a lap
belt.” Doyle, 81 F.3d at 141. Moreover, the court of
appeals in Doyle was not reviewing a preemption decision,
but a district court ruling “[fJinding plaintiffs’ claims pre-
cluded under Georgia law,” id. (emphasis added), and
the court of appeals certified to the Supreme Court of
Georgia that “unanswered question of Georgia law that
is determinative of this appeal,” id. at 140. Thus, the
court of appeals could not have “reaffirmed” its Myrick
preemption holding in Doyle, because that issue was not
before the court in Doyle.

To the extent that the Eleventh Circuit in Doyle indi-
cated any view regarding preemption of “no-airbag”
claims, it indicated that Taylor had correctly held such
claims preempted because of the conflict between such
claims and applicable federal law. The court stated:

While Taylor endorses the Georgia Court’s ruling
in [Honda Motor Co. v.] Kimbrel, [189 Ga. App.
414, 376 S.E.2d 379 (1988), that “no-airbag”
claims cannot be maintained under Georgia law],

17

it makes clear that preemption exists only when
there is a conflict between federal and state law, as
there would have been had Kimbrel been «.vided
otherwise.

Doyle, 81 F.3d at 142 (emphasis added).

Thus, none of the federal court of appeals decisions
cited by Petitioners held “no-airbag” claims not preempted.
The court of appeals’ decision in this case holding “no-
airbag” claims preempted is in fact consistent with every
other federal court of appeals decision addressing that
issue. See, e.g., Pokorny, 902 F.2d 1116; Taylor, 875
F.2d 816; Kitts, 875 F.2d 787; Wood v. General Motors
Corp., 865 F.2d 395 (1st Cir. 1988), cert. denied, 494
U.S. 1065 (1990). Each of those decisions explicitly held
“no-airbag” claims preempted.

Petitioners’ description of recent decisions by state
courts of last resort is also incorrect. Petitioners errone-
ously assert that, following this Court’s vacatur and
remand in Hernandez-Gomez v. Volkswagen of America,
Inc., 884 P.2d 183 (Ariz. 1994), vacated and remanded,
US. , 115 S. Ct. 1819 (1995), the Arizona
Supreme Court “announced its decision on rehearing find-
ing no preemption of state tort law claims by the Safety
Act. Hernandez-Gomez v. [Leonardo] 917 P.2d 238
(Ariz. 1996).” (Pet at 13.) In fact, the Arizona Su-
preme Court merely found no preemption of a Doyle-type
claim—namely, that a Volkswagen automobile was defec-
tive because it did »ot have a lap belt. The court ex-
plicitly recognized that other common law claims are
preempted by the Sate y Act. The court stated:

It is clear to as, however, that at the very least
Myrick stands ior the proposition that common-law
claims that expressly and directly conflict with the
text of the [federal] standard are preempted by the
preemption clause; common-law claims that do not

18

expressly conflict may still be preempted if they
violate one of the articulated rules for implied
preemption....

Hernandez-Gomez, 917 P.2d at 243. “No-airbag” claims
fit squarely within the category the court described as
claims that “are preempted.”

Petitioners’ description of “no-airbag” preemption deci-
sions by state courts of last resort is also incomplete, be-
cause it does not include a decision issued by the Missis-
sippi Supreme Court on May 23, 1996, two days after
the petition in this case was filed. In Cooper v. General
Motors Corp., No. 92-CA-01334-SCT, 1996 WL 272362
(Miss. May 23, 1996), the Mississippi Supreme Court,
like all of the federal courts of appeals that have ad-
dressed the issue, held “no-airbag” claims preempted by
federal law.

Because the federal courts of appeals that have ad-
dressed the issue have unanimously held “no-airbag”
claims preempted, and because more than 140 other
courts have held such claims preempted, Petitioners can
neither correctly assert that the decision below conflicts
with a decision of another United States Court of Appeals
nor justifiably assert that the Tenth Circuit “has so far de-
parted from the accepted anc usua/ course of juc’«:al pro-
ceedings . . . as to call for an exercise of this C »1rt’s super-
visory power ....” Rule 10(a), Rules of the Supreme
Court of the United States. As shown in sections I and II
above, resolution by this Court of the conflict between the
vast majority of courts that have held “no-airbag” claims
preempted and the small number of state courts” that
have held to the contrary should await a case that more
appropriately presents the issue for consideration.

12 See, e.g., Wilson v. Pleasant, 660 N.E.2d 327 (Ind. 1995);
Tebbetts v. Ford Motor Co., 665 A.2d 345 (N.H. 1995), cert. denied,
— US. , 116 S. Ct. 773 (1996); Loulos v. Ford Motor Co.,
882 S.W.2d 149 (Mo.App. 1994).

19

IV. CONTRARY TO PETITIONERS’ CONTENTION,
THE DECISION BELOW DOES NOT CONFLICT
WITH CONGRESS’ INTENT AS EXPRESSED IN
15 U.S.C, SECTION 1397(k)

Petitioners characterize 15 U.S.C. section 1397(k) as
an “express anti-preemption provision” and a “savings
clause” that “unambiguously preserves all common law
claims.” (Pet. at 18-19.) That characterization is wrong
in every respect, and it does not provide an appropriate
basis for review by this Court.

Section 1397(k) provides, “Compliance with any Fed-
eral motor vehicle safety standard issued under this sub-
chapter does not exempt any person from any liability
under common law.” 15 U.S.C. § 1397(k). This clause
establishes that compliance with Federal Motor Vehicle
Safety Standards does not constitute an affirmative defense
to common law claims.

The language of section 1397(k) demonstrates that it
is not an “express anti-preemption provision” and in fact
does not address preemption at all. First, the true pre-
emption provision, 15 U.S.C. section 1392(d), is ex-
plicitly entitled “Supremacy of federal standards,” whereas
section 1397(k) has a title that makes no reference to
the Supremacy Clause or to preemption. Section 1397(k)
is simply entitled “Continuation of common law liability.”

Second, as the First Circuit correctly recognized in
Wood, 865 F.2d at 401 n.8, 417-18, the language of
section 1397(k) definitively is not the language commonly
employed by Congress in saving clauses intended to re-
strict the scope of preemption. Instead, the language of
section 1397(k) is language that refers to and negates
compliance with a government standard as an affirmative
common law defense.

This narrow language, referring as it does to “[c]lom-
pliance with any Federal motor vehicle safety standard,”
differs dramatically from the encompassing saving lan-

20

guage that Congress used both in the Safety Act itself
and in numerous other statutes when it intended to re-
strict the scope of preemption. Thus, for example, in the
true express preemption provision of the Safety Act, sec-
tion 1392(d), Congress explicitly incorporated two sav-
ing-clause exceptions to the preemptive first sentence of
that provision. Each of the two saving-clause sentences
begins with the clear, unambiguous, and traditional anti-
preemption saving language, “Nothing in this section shall
be construed.” The two saving clauses in the preemption
provision state:

Nothing in this section shall be construed as prevent-
ing any State from enforcing any safety standard
which is not identical to a Federal safety [standard].
Nothing in this section shall be construed to prevent
the Federal Government or the government of any
State or political subdivision thereof from establish-
ing a safety requirement applicable to motor vehicles
or motor vehicle equipment procured for its own use
if such requirement imposes a higher standard of
performance than that required to comply with the
otherwise applicable Federal standard.

15 U.S.C. § 1392(d) (emphasis added). The saving
clauses in virtually every other case decided by this Court
in this century have used similar encompassing language,
not the narrow, affirmative-defense-oriented “compliance
with” language of section 1397(k).”°

18 See, e.g., John Hancock Mut. Life Ins. Co. v. Harris Trust
& Sav. Bank, US. , 114 S. Ct. 517 (1993) (interpreting
saving clause of Employee Retirement Income Security Act, 29
U.S.C. § 1144(b) (2) (A), which states that the statute “shall [not]
be construed to exempt or relieve any person from any law of
any State which regulates insurance, banking, or securities’) ;
Morales v. Trans World Airlines, Inc., 504 U.S. 374, 378 (1992)
(interpreting saving clause of Federal Aviation Act of 1958, 49
U.S.C. § 1506, which states, “Nothing ... in this chapter shall in
any way abridge or alter the remedies now existing at common
law or by statute, but the provisions of this chapter are in addition
to such remedies.’’) ; Cipollone, 505 U.S. at 518 (referring to saving

21

Moreover, in CSX Transportation, Inc. v. Easterwood,
507 U.S. 658 (1993), this Court reaffirmed the established
principle that, in interpreting an express preemption provi-
sion, “[e]vidence of pre-emptive purpose is sought in the
text and structure of the statute at issue.” 507 U.S. at 664
(emphasis added). Here, section 1397(k) appears five
full sections after the true preemption provision—namely,
the provision whose title explicitly refers to the “Suprem-
acy of federal standards.” That structural fact alone indi-
cates that section 1397(k) was not intended to address
preemption. That structural fact is reinforced by the
additional structural fact that section 1392(d) contains
two, and only two, explicit saving clauses, each of which
uses traditional saving-clause language. This additional
structural fact suggests that, if Congress had intended
section 1397(k) to constitute a third—and the most
sweeping—exception to the preemption provision in the
first sentence of section 1392(d), Congress would have
included the language of section 1397(k) in its logical
place, adjacent to the other two explicitly stated saving
clauses in the provision labeled “Supremacy of federal
standards.” Accordingly, the statutory structure of the
Safety Act, like its text, shows that section 1397(k) was
never intended to address preemption and was never in-
tended to create a sweeping exception to section 1392(d).

Even if section 1397(k) were somehow to be con-
strued as a saving clause that limited preemption, it would
not prevent the conflict preemption that exists here. For
almost a century, this Court has narrowly interpreted
general saving clauses not to prevent conflict preemption,
but only to preclude preemption of an entire field; that is,
without such a clause,

clause of Comprehensive Smokeless Tobacco Health Education Act
of 1986, 15 U.S.C. § 4406(c), which states, “Nothing in this Act
shall relieve any person from liability, under common law or under
State statutory law, to any other person.’’).

22

it might have been claimed that Congress having
entered the field, the whole subject of liability .. .
had been withdrawn from the jurisdiction of state
courts, so [the saving clause] was added to make
plain that the Act was not intended to deprive
the state courts of their general and concurrent
jurisdiction.
Chicago & N.W. Transp. Co. v. Kalo Brick & Tile Co.,
450 U.S. 311, 328 (1981). See also International Paper
Co. v. Ouellette, 479 U.S. 481, 492-94 (1987); T.1.M.E.
Inc. v. United States, 359 U.S. 464, 473-74 (1959);
Pennsylvania R.R. v. Puritan Coal Mining Co., 237 U.S.
121, 129-30 (1915); Texas & Pac. Ry. v. Abilene Cotton
Oil Co., 204 U.S. 426, 446-47 (1907).

In Abilene Cotton, for example, the Court held that
the Interstate Commerce Act precluded a common law
action for damages for unjust and discriminatory rates,
notwithstanding the Act’s broad saving clause, which
stated:

Nothing in this act contained shall in any way
abridge or alter the remedies now existing at com-
mon law or by statute, but the provisions of this act
are in addition to such remedies.

204 U.S. at 446-47. Recognizing the tension between the
saving language and the broader purposes of the federal
regulatory scheme, the Court held that the saving clause
“cannot in reason, be construed as continuing . . . a com-
mon law right” inconsistent with the underlying ‘federal
aims. Id. at 446. Accord Ouellette, 479 U.S. at 492-94;
Kalo Brick, 450 U.S. at 331; T.1.M.E., 359 U.S. at 473-
74; Puritan Coal Mining, 237 U.S. at 129-30.

Thus, even if section 1397(k) were construed as con-
taining anti-preemption saving language, rather than the
affirmative-defense “compliance with” language that it
actually contains, it would properly be interpreted to pre-
clude field preemption, not to preclude the narrow form

23

of preemption that arises when the state standard in issue
conflicts with the purposes and policies of the federal
regulation or statute in issue.

An interpretation of section 1397(k) that precludes
broad field preemption yet permits narrow conflict pre-
emption is consistent with the legislative history of the
Safety Act. The Senate Report stated: “[T]he Federal
minimum Safety Standards need not be interpreted as re-
stricting State common law standards of care. Compli-
ance with such standards would thus not necessarily shield
any person from product liability at common law.” S.
Rep. No. 1301, 89th Cong., 2d Sess. (1966), reprinted
in 1966 U.S.C.C.A.N. 2709, 2720 (emphasis added). If
section 1397(k) prevented preemption of common law
claims, the words “not necessarily” and “need not” would
be not merely superfluous, but internally inconsistent. If,
on the other hand, section 1397(k) addresses only com-
pliance with affirmative defenses, or precludes only field
preemption and not conflict preemption, the quoted legis-
lative history is sensible, precise, and consistent with
decades of Supreme Court precedents. In short, compli-
ance with a federal Safety Standard does not necessarily
prevent application of a state standard, but it does so in
instances in which the state standard would impede the
federal purposes.

24
CONCLUSION

Fo? the foregoing reasons, review by this Court is
neither necessary nor appropriate. Respondents respect-
fully request that the petition be denied.

Respectfully submitted,

MALCOLM E. WHEELER *

ROBERT B. HUNTER

RICHARD P. BARKLEY

PARCEL, MAURO, HULTIN
& SPAANSTRA, P.C.

1801 California Street

Suite 3600

Denver, Colorado 80202

(303) 292-6400

Attorneys for Respondents
American Honda Motor
Company, Inc., Honda Motor
Company, Ltd., and Honda
R&D Co., Ltd.

Dated: July 19, 1996 * Counsel of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1369%3A3. Public record. Not legal advice.